El Diwany v Hansen & Anor [2011] EWHC 2077 (QB)

[2011] EWHC 2077 (QB)Case No HQ10D02334Case No HQ10D02228
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 29 th July 2011
Before
THE HONOURABLE MRS JUSTICE SHARP
Between
FARID EL DIWANYClaimantHQ10D02228Defendant
Farid El Diwany in person for in personDavid Hirst (instructed by Charles Russell) forTorill Sorte and The Ministry of Justice and the Police, Norway , for Roy Hansen did not appear and was not representedHearing Hearing date: 16 March 2011
Judgment
[1]There are a number of applications made by the Defendants in two related libel actions. The parties to the actions are as follows. The Claimant in both actions is Mr Farid El Diwany, a British solicitor resident in this jurisdiction. The two defendants to the first action (which I shall call the Sorte action) are Mr Roy Hansen, the First Defendant - a Norwegian journalist living in Norway, who runs his own press service and Ms Torill Sorte – the Second Defendant, a Norwegian police officer – who also lives in Norway. The Defendant to the second action is the Ministry of Justice and the Police, of the Kingdom of Norway (the MOJP), a department of state in Norway. I shall refer to this second action as the MOJP action.[2]The Claimant appears in person. Mr David Hirst appears on behalf of both Ms Sorte and the MOJP. Mr Hansen did not appear before me, and has taken no part in the proceedings to date.[3]In the Sorte action, the Claimant claims damages for libel in relation to an article published by Mr Hansen on a local Norwegian press agency website run by him called www.pressetjeneste.no, Its name in English is “Roy’s Press Service”. and against Ms Sorte for statements said to have been made by her to Mr Hansen, which were then published as part of the article.[4]There are three applications made: two by Ms Sorte, and one by the MOJP. Ms Sorte, applies to set aside judgment obtained against her in default of acknowledgement of service, in the Sorte action pursuant to CPR rule 13.2 alternatively CPR rule 13.3. She also applies to strike out the Sorte action pursuant to CPR rule 3.4(a), (b) and (c).[5]These applications are supported by two witness statements of Ms Sorte, a witness statement from Mr James Quartermaine, a solicitor at Charles Russell, solicitors, instructed on behalf of Ms Sorte and the MOJP, and by a witness statement of Christian Reusch an Attorney for the MOJP. There are also two witness statements from the Claimant.[6]In the MOJP action, the Claimant claims damages for libel against the MOJP in respect of the article complained of in the Sorte action on the ground that the MOJP is vicariously liable for Ms Sorte’s conduct in contributing to it as it is the ultimate employer of Norwegian police officers. If the claim against Ms Sorte is struck out it would follow that the claim against the MOJP would fail as well. But there is also a separate and discrete application by the MOJP. It applies to set aside the Order of Master Eastman made on 16 July 2010 permitting service out of the jurisdiction in the MOJP action. The application is made on the ground that the Claimant failed to satisfy the court (as he should have done) that there is a good arguable case that the principle of state immunity does not apply. It is further said that in any event, state immunity does apply to the claim and therefore the claim should either be stayed or struck out.[7]The background to the events with which these actions are concerned is conveniently summarised by Ms Sorte in her witness statement made in the MOJP action, and relied on in support of her applications in the Sorte action:
“I have been aware of the Claimant, Mr El Diwany, since approximately April 1996 when I became involved in a police investigation concerning him. The details of the case were as follows. In the early 1980s, a Norwegian woman called Heidi Schøne worked in the United Kingdom as an au pair where she met Mr El Diwany. They became friends. Heidi Schøne and Mr El Diwany corresponded, for some years amicably, after she had left England and returned to Norway. Mr El Diwany visited Norway to see Ms Schøne. As far as I recall, in approximately 1996 Ms Schøne presented herself at Neder Eiker police station to lodge formal complaints of harassment against Mr El Diwany, complaints which Mr El Diwany has always denied.”
The harassment Ms Schøne alleged took the form of unwanted telephone calls, letters, postcards and approaches to neighbours and family. I was responsible for investigating the complaints against Mr El Diwany. Letters sent to Ms Schøne by Mr El Diwany were redirected through the police station and her telephone number and address were changed. Ms Schøne would also be telephoned regularly by Mr El Diwany and members of her family and neighbours would receive postcards making grossly offensive allegations against her, usually with a focus on sex. These were referred to the police, as part of the investigation. I had frequent telephone contact with Mr El Diwany in the course of my investigation in the mid and late 1990s, in which he repeated his allegations about Ms Schøne’s lack of morality, her impropriety and how she was incapable of looking after her child. Mr El Diwany recorded some of these conversations and has published transcription of some of them on his website. At around this time the Claimant commenced a civil claim for defamation against Heidi Schøne in the Norwegian courts. The claims were brought by Mr El Diwany because Ms Schøne had made statements to two newspapers in the late 1990s about Mr El Diwany’s harassment of her, although he was not named in the printed articles. On 11 February 2002 the Drammen District Court dismissed Mr El Diwany’s claim and ordered him to pay the costs of the case. The Claimant appealed. On 14 November 2003, the appeal was dismissed by the Borgarting Court of Appeal and the lower court’s decision on costs affirmed. The Borgating Court of Appeal, whose judgment is attached to this statement as Exhibit TS1 considered Mr El Diwany’s claims to be vexatious and observed in their judgment:
“The court action as a whole appears to be an abuse of the judicial system. The Court has considered imposing a fine for contempt of court under section 202 of the Courts of Justice Act but has refrained from doing so since there it is doubtful whether there are subjective conditions for imposing a penalty.”
I was involved as a witness for Heidi Schøne in these civil proceedings. I attach to this witness statement as Exhibit TS2 a copy of the judgment of the Eiker Modum and Sigdal District Court dated 2 November 2001 which confirms the criminal conviction of Farid El Diwany for violation of section 390a of the Norwegian Penal Code – violation of privacy – for harassment of Heidi Schøne for a number of years until 1998. The judgment sets out in full the grounds of that conviction. The sentence was set down as a fine of NOK 10,000 (or alternatively 25 days in prison). In 2003 Mr El Diwany was convicted again for further criminal harassment of Ms Schøne and sentenced to a further fine and an eight month prison sentence which was suspended subject to the claimant agreeing not to further contact or harass Ms Schøne and the removal of his website from the internet. The Claimant has not complied with these conditions. I attach the judgment of the Eiker Modum and Sigdal District Court dated 17 October 2003 as Exhibit TS3. I was also called to give evidence in Mr El Diwany’s unsuccessful civil action against Heidi Schøne. My involvement in the investigation has led to a campaign of harassment and vilification against me also, conducted by Mr El Diwany, primarily over the internet and by fax and telephone. As a consequence of my investigation of Mr El Diwany in my capacity as a police officer in the Heidi Schøne case I have been subjected to persistent harassment and attacks by Mr El Diwany. These have taken the form of verbal abuse in telephone calls and in statements on websites of Norwegian newspapers or websites controlled by Mr El Diwany. I have frequently been described as corrupt and a liar by Mr El Diwany on his website and in faxes sent en masse to local businesses and individuals in Norway. As a result of this continuing harassment in 2008 I made my own formal complaint to the police authority about Mr El Diwany’s harassment of me and interference with my role as a police officer. Although Mr El Diwany’s pestering telephone calls appeared to abate for a few years between 2004 and 2006 on the occasion that I commenced a new job in Autumn 2006 at the National Police Union, Mr El Diwany telephoned my manager Ame Johannessen and told him that I should not be working as a police officer because I was a liar. A year later it appears that Mr El Diwany discovered my mobile telephone number on a police website and rang me regularly. He also telephoned me on my home telephone, and even spoke to my teenage son who at one stage was afraid to be at home alone because of Mr El Diwany’s persistent phone calls which would often take place late at night or early in the morning. I have had to have my mobile number changed and my home telephone number disconnected as a result of the volume and unpleasant nature of calls received from Mr El Diwany. The impact of Mr El Diwany’s campaign against me has had a considerable and harmful effect on my family life. I believe the bringing of this libel claim in the United Kingdom to be a continuation of this vendetta, and that these proceedings have been deliberately brought to cause me ongoing emotional and financial stress and inconvenience. Mr El Diwany has also reported me to the Special Police Investigation Commission in Norway and to the Norwegian Bureau for the Investigation of Police Affairs. These cases complaints have all been rejected. I attach as Exhibit TS4 a copy of a letter dated 19 June 2007 from the Norwegian Bureau for the Investigation of Police Affairs informing the Claimant of its decision not to pursue his complaint against me and the publisher of various Norwegian newspapers. The decision relates in part to the article that is the subject of Mr El Diwany’s complaint in this libel action. “The court action as a whole appears to be an abuse of the judicial system. The Court has considered imposing a fine for contempt of court under section 202 of the Courts of Justice Act but has refrained from doing so since there it is doubtful whether there are subjective conditions for imposing a penalty.”[8]The Claimant’s website to which Ms Sorte refers is www.norwayuncovered.com/norway/. Though, as Ms Sorte says, the Claimant’s prison sentence following his second conviction for harassment was suspended on conditions which included he stop harassing Ms Schone and remove offensive material about her from his website, it is plain on the evidence before me that he has not complied with the latter requirement since highly offensive material about her remains on it. It is to be noted, in addition, that the Claimant has posted the article complained of on his own website, albeit with his name removed.[9]In addition to the two criminal and two civil proceedings to which Ms Sorte refers, the Claimant made two further appeals against the rejection of his civil claim: first to the Norwegian Supreme Court and then to the European Court of Human Rights. Both were rejected.[10]Set out as an Appendix at the end of this judgment are extracts in their certified English translation, from the various judgments handed down by the criminal courts and civil courts and from the letter of the 19 June 2007 from the Norwegian prosecuting authorities to which Ms Sorte refers.[11]As can be seen from the judgments of the court, they set out extracts from postcards and letters sent by the Claimant to Ms Schone, and from so-called “Reports” written by him about her, and widely circulated as the various judgments record.[12]Thus, it is Ms Sorte’s case, supported by the MOJP, that the Claimant has transferred his harassing behaviour from Ms Schone to Ms Sorte (including by bringing these proceedings), but by other means as well, including abusive and unpleasant telephone calls made to her at her home. In the course of the hearing before me, a selection of recordings of telephone calls made by the Claimant to Ms Sorte in 2007-2008 were played to the court. The Claimant’s explanation for these was that he was angry. A transcript of 5 of those messages, all of which were left by the Claimant on Ms Sorte’s answering machine after an automated message in Norwegian at beginning of each message, is as follows: FED You cowardly bitch, answer the phone. The only excuse you’ll have is if you’re in a mental hospital. Your mother’s probably visiting you now. Anyway how does it feel to be on the front page of a website you piece of trash. Inbred, Norwegian trash that’s all you are. Now I’ll keep on until you resign or are sacked you piece of trash. FED Come on coward just pick up the phone. Come on cheat pick up the phone you piece of trash. You liar, abuser, crooked policewoman, pick up the phone you piece of shit, you bloody coward, god damn you, you dishonest trash. FED If I can’t speak to you let me speak to the psychiatrist who is taking care of you in the mental hospital. At least he should have the honour to tell me what your condition is apart from being a lying pervert that is. And well protected by Judge Neilson weren’t you. You’re all trash, you lying bitch, come on answer the phone. You ruin lives you do, you cheap little shit. FED Come on, come to the phone you piece of shit. Come to the phone you piece of damn little shit, come. You pervert, you sickening pervert if only we could get you into court in England, you piece of fucking shit. What’s it like being an abuser, a liar and a cheat, a corrupt policewoman – eh? Nothing you can do about it now because you’ve made the big fatal error so just resign. I’m going to have to do something, I’m going to have to speak to the judge or the court because you, you must be dismissed. You utter piece of trash. FED Come on you wretched pervert, answer the phone, you disgusting piece of trash, a liar, and there’s nothing you can do, nothing you can do to help yourself because you’re a perverted lying pig who perverts the course of justice and is protected by your trash judge. You know you’ve lied, I know you’ve lied in such an extreme stinking way that this will follow you for the rest of your life, you Norwegian piece of inbred trash.

The article complained of and the Claimant’s pleaded case

[13]In 2005/6 Mr Hansen conducted an interview with Ms Sorte in Norway in Norwegian in connection with an article he was writing about the harassment of Ms Schone. This article was then published in a Norwegian local newspaper, Eiker Bladet on 11 January 2006. It was republished a few days later (again in Norwegian) on Mr Hansen’s website, www.pressetjeneste.no, where it has been available ever since. There is no link or facility either on the webpage published by Mr Hansen on the www.pressetjeneste.no website, or on his website generally to translate the article into English.[14]The version of the article actually complained of by the Claimant is in English. The English version has been created by the use of a Google-based web translation service, as the Claimant himself pleads in his Particulars of Claim. The Google translation service is an on demand translation service provided by Google for items listed by its search engine. Its use has resulted in an apparently garbled translation of the article; and a professionally translated version of the article has also therefore been provided by Ms Sorte and the MOJP and put in evidence.Where necessary I shall refer to the article in Norwegian as the original article, and the Google translated version, as the Google article when it is material to distinguish between them.[15]There is, in addition, a variation between the words complained of and the Google article exhibited to the witness statement of Mr Quartermaine. It appears that the Google translation service does not produce the same translated version each time it is used. The copy of the Google article exhibited by Mr Quartermaine says as follows:
“CONTINUED HARASSMENT OF POLICEWOMAN”
By Roy Hansen 01/11/2006 Englishman Farid El Diwany continuing harassment of Norwegian women. After harassed Heidi Schone from Solbergeiva for years, he now attacked the police chief of Lower Tori Black The English translation of ‘Sorte’ is ‘Black’. Spokes sheriff’s office. Through a series of “posts” in Drammen Tidende’s web site has recently Englishman continued his safety against the police chief of Lower Tori Black Spokes sheriff’s office. This happens partly because he puts a link to a website he is ordered to remove from the net, as late as 17 October 2003. Now laws DTS webmaster, Lars Stock Espevalen that they will monitor the site’s better to delete unwanted posts as soon as possible. The man has bothered Schone Heidi and her family since 1982, and it has proven to be very difficult to stop him, “says Tori Black. In 2003 she was chief investigator in the case that ended up with a sentence of two years suspended sentence and fined for gross harassment in the spokes, Modum and Sigdal District Court. Since then the Muslim man also added police investigator for the hatred. Sent Faxes A number of government agencies, newspapers and other media, and private businesses have received faxes from her husband about her involvement in the case, and it is unflattering what he writes about her. - I can handle this and know that I have not done anything wrong in the matter. While not an internal investigation has revealed nothing wrong, “said Black. She still takes persecution through the DTS website serious because they are readily available and because of the fact that the man is ordered to remove pages from the web. Furthermore, harassment is a growing problem in society, where lower spokes is no exception. Difficult issues - Harassment cases are difficult cases because it takes a lot for us to travel a prosecution. As usually happens persecution by divorce, and even if we can impose fines helps rare, “she said. Lower Spokes sheriff’s office handles an average of 25 to 30 such cases each year, but few are so serious that the case against the Englishman. - There are several forms of harassment, and if, for example, a scorned husband who send text messages to his ex, stopping the rare although it imposed fines. However, there is talk of defamation and nuisance behaviour involving several people is a bit easier to get sentenced to a sanction, “said Tori Black. Taking up the issue She will now take harassment case against himself up with the leadership of the Southern Buskerud Police District. Last summer, the Englishman had been sent by fax to the police directorate, and this was forwarded through official channels to her for comment. Although she says that it does not bother her personally, Torill Sorte that this matter should not be allowed to develop. It is also for what we know of an initiative to the Justice Ministry to amend the legislation in this area. - The man is clearly mentally unstable and have to spend so much time and effort, not to mention money, to harass Schone Heidi and me, along with some other women we know. Unfortunately, the laws so that we can not covet him extradited for further prosecution, “said Black. (Published in Spokes magazine 01/11/2006)” By Roy Hansen 01/11/2006 Sent Faxes Difficult issues

Taking up the issue

[16]The Claimant has selected some of the words (albeit with slight variations) from that article for complaint. Paragraph 4 of the Particulars of Claim sets out those selected words and is as follows:
“From a date unknown but before 1st July 2009 the First Defendant published and/or caused to be published in English on www.pressetjeneste.no the following defamatory words about the Claimant including those spoken and otherwise sourced from the Second Defendant (whose surname Sorte means and is translated, in one instance, as “Black” in English) which continues to be published online: “a) English man Farid El Diwany continuing [sic] harassment of Norwegian women. Having harassed Heidi Schone from Solbergelva for years. He has now loose [sic] on the police chief Torill Sorte at Lower Eike sheriff’s office;” b) The man has bothered …Heide and her family since 1982… c) Since then, the Muslim man has also added [sic] police detective for hatred… d) The man is clearly mentally unstable and must use an incredible amount of time and effort, not to mention money, to harass Heidi Schone and the undersigned in addition to any [sic] other women we know…said Black [sic]”
[17]In paragraph 5 it is alleged those words bear the following natural and ordinary meaning in the context in which they were published: “that the Claimant harasses several Norwegian woman, including and in particular Heidi Schone and also police chief Torill Sorte and that the Claimant is mentally ill and that his being a Muslim has a connection to the behaviour complained of. “[18]In paragraph 3 of the Particulars of Claim, the Claimant pleads his case against Ms Sorte in this way:
“The Second Defendant is a serving Norwegian police officer for the Nedre Eiker district in Norway and was interviewed and quoted by the First Defendant regarding an article on the Claimant published and/or caused to be published by the First Defendant on www.pressetjeneste. The said article is part of Roy’s Press Service which appears on the website and the article is a Google facilitated English translation of a Norwegian language article which was first published in Norwegian in a local Norwegian newspaper called Eiker Bladet on 11 January 2006 under the heading Fortsetter trakassering av politikvinne (Continuing the harassment of policewoman), written by the First Defendant.”
[19]The Claimant does not therefore contend expressly that Ms Sorte published the article itself, but that she was responsible for the words spoken by her to Mr Hansen.[20]The Claimant goes on to plead in paragraph 6 that when he enters his full name on the Google search engines (both google.co.uk and google.com) there regularly appears at the top of the resulting list of entries a hyperlink to www.pressetjeneste.no for the article containing the words both in Norwegian and English; that his full name appears on that hyperlink, and that pending disclosure or suitable admissions, the Claimant invites the inference from the prominence of the article on the list of entries that it has been published to a “sufficient but unquantifiable number of readers in respect of which paragraph 3 is repeated”; and that “The readers will include in all likelihood, clients and prospective clients of the Claimant, a solicitor.”

Procedural History

[21]The Claimant issued proceedings in the MOJP action on 14 June 2010, and in the Sorte action on 21 June 2010. On 16 July 2010 Master Eastman gave permission to the Claimant pursuant to his application in the MOJP action, for him to serve out of the jurisdiction “in accordance with the State Immunity Act 1978”. In the Sorte action, service was effected under Article 5 of the Hague Convention 1965 through the Foreign Process Section of the Royal Courts of Justice, by a request made by the High Court on 27 July 2010. On 25 August 2010 the claim in the Sorte action was served on Ms Sorte by the Eiker Modum and Sigdal District Court, Norway.[22]In her witness statement served in support of the application to set judgment in default aside, Ms Sorte says that she first became aware of the proceedings when they were served on her on 25 August 2010. She promptly consulted the Norwegian lawyer, Mr Johansen, advising her in relation to a complaint she has made about the Claimant to the Norwegian domestic authorities. With his help, she filled in the Acknowledgement of Service indicating she wished to defend the whole proceedings, and contested the court’s jurisdiction; and returned it to the High Court on 7 September 2010 by registered delivery. She did not keep a copy of the Acknowledgement of Service, but exhibits a copy of the post room log at Nedre Eiker police station which confirms an item was sent from there to the Royal Courts of Justice, at the correct address, on that date.[23]On 21 September 2010 Mr Johansen wrote to the High Court on Ms Sorte’s behalf, setting out the grounds on which she intended to defend the claim and contesting jurisdiction.[24]On 23 September 2010 the Claim Form and Particulars of Claim in the MOJP action were served on the MOJP through the Ministry of Foreign Affairs of Norway. On 18 October 2010 the High Court sent a written request to Ms Sorte asking for a United Kingdom address. On 3 November 2010 Mr Johansen responded saying there was no United Kingdom address and continued to contest jurisdiction.[25]On 18 November 2010 the Claimant obtained judgment in default of acknowledgement of service in the Sorte action. On 26 November 2010 the judgment order was served on Ms Sorte. On 22 December 2010 the MOJP issued an application to set aside the Order of Master Eastman made on 16 July 2010. On 3 February 2011 an application by the Claimant to compel the attendance of a MOJP lawyer for cross-examination was dismissed by Master Leslie. On the same day, Ms Sorte and the MOJP issued the applications now before the court.

The first application: setting aside judgment in default

[26]It is acknowledged by Mr Quartermaine that Ms Sorte’s response to the claim through her Norwegian lawyers was not in accordance with the CPR because an Acknowledgement of Service must include an address for service within the United Kingdom (see CPR 10.5 and CPR 6.23); and though no copy of the Acknowledgement of Service is before the court, it is clear from the correspondence that Ms Sorte’s Norwegian lawyers did not provide such an address. Nonetheless Mr Hirst submits first, that Ms Sorte did return an Acknowledgement of Service to the Court within the permissible time limit (albeit it was defective). Second, Ms Sorte’s default, such as it was, was understandable and excusable in the circumstances, such that the court should set aside the judgment obtained in default. Third, that the Court can be satisfied she has a real prospect of defending the claim.[27]The Claimant submits that by not providing an address for service in the United Kingdom, Ms Sorte’s lawyers deliberately chose not to comply with the CPR; and that she has not provided any evidence that the Acknowledgement of Service she says she posted has actually been filed by the court. The Claimant also submits (and indeed this is his principal submission overall) that Ms Sorte’s application to set aside judgment in default should be refused on the ground that she did not have a defence with any real prospect of success.[28]As to the merits, the Claimant says that Ms Sorte had not mentioned in the Eiker Bladet article that the Claimant had received “many loving letters from Heidi Schone from the time I first met her in 1982” (he exhibits a letter post stamped 22 August 1984, a letter written possibly in the Spring of 1984, and another postcard, sent on 9 April 1985). He says he could not possibly have bothered Ms Schone and her family therefore “since 1982” as alleged by Ms Sorte. He further says her letters contradict Ms Schone’s later claims of his “alleged year in year out sex-terror and obscene abuse from the time she returned to Norway in June 1982” [his emphasis].[29]The Claimant also says no defence or substantiation is offered for the “clearly mentally unstable” libel, which he says must be read in the light of earlier remarks made by Ms Sorte in Dagbladet newspaper three weeks earlier (that is, in December 2005) that the Claimant had spent “two years in a mental hospital in the UK” where he was committed by his mother. This is an allegation he strongly denies; and he exhibits a letter from his family doctor dated 22 April 2003, in which his doctor states he can find no evidence in the Claimant’s medical records that the Claimant has ever been committed as an inpatient at any psychiatric hospital.[30]The Claimant submits the words “harassment” used in the original article give no clue to the fact that the harassment was in fact an “information campaign of my own in response to vast newspaper provocation” in accordance with his article 10 rights to freedom of expression and his right to reply. In this context he describes his website as initiated “in order to combat vile mental, sexualised and religious abuse instigated by a registered mental patient Heidi Schone, a duplicitous police officer – Torill Sorte and a bigoted third-rate press…Likewise for the two malicious prosecutions and convictions obtained against me …for this leaflet ‘harassment’ and website ‘harassment’ ”. He also says that he has incontrovertible evidence from a conversation with Ms Sorte that Ms Schone wanted to drop the case against him in 1996.[31]The Claimant says that Heidi Schone herself had been a patient at a psychiatric clinic in Norway and her psychiatric history makes her allegations both in the newspapers and in court in 2001, 2002 and 2003, highly unreliable.[32]He also says Ms Sorte is an obvious liar and that he has not made pestering nuisance calls to her.[33]I can deal with this application shortly. It is unnecessary for me to consider whether this is a case falling within CPR rule 13.2 (i.e. one in which the court must set aside judgment in default) since I am quite satisfied this is a case in which I should exercise my discretion to set the judgment aside pursuant to CPR r 13.3(1) (a) and (b). I am satisfied that Ms Sorte has a real prospect of successfully defending the claim for the reasons developed below. In addition, in my view there is a good reason why the judgment should be set aside or varied. As Mr Quartermaine points out, no attempt was made by the Claimant to comply with the pre-action protocol for defamation claims in relation to this claim: indeed Ms Sorte had no prior notice of the claim whatever (relating as it did to an interview she did in 2005/6 and an article published for the first time in January 2006) before she was served “out of the blue” with the Claim form and Particulars of Claim on 25 August 2010. She did not then ignore the proceedings but took immediate steps to try and defend the proceedings both by returning the Acknowledgement of Service, as I accept on the evidence she did, and through her Norwegian lawyers shortly thereafter. It appears on the evidence of Mr Quartermaine that the steps that she took were sufficient to defend the claim in her domestic legal system, that is, under Norwegian procedural law. If there was a default therefore, in my view it was an excusable one.[34]In those circumstances, the default judgment entered against Ms Sorte on 18 November 2010 by Master Leslie will be set aside; and I can turn to the second application made on her behalf.[35]This application is made on a number of different grounds.[36]It is submitted by Mr Hirst that the only claim against Ms Sorte is a slander claim in respect of the statements she made to the journalist (Mr Hansen) who wrote the article. That claim is not properly particularised or pleaded and is unsustainable on the facts and as a matter of the law. It also follows that the claim is statute barred as it relates to oral statements made by Ms Sorte to Mr Hansen in late 2005/early 2006. The Claimant has made no application to the court to disapply the limitation period for libel and slander claims, nor Mr Hirst submits, would any such application succeed even if it were made. Moreover, the court does not have jurisdiction to hear the claim, as Ms Sorte’s oral statements to Mr Hansen in 2006 (which form the basis of the claim against her) were not acts which took place within England and Wales but in Norway.[37]Mr Hirst further submits that no claim is made that Ms Sorte caused or authorised the publication of the article (in any language) or that she should be fixed with responsibility for its publication. Alternatively, and in any event, the Claimant has not pleaded a proper case on publication in his Particulars of Claim, and discharged the burden resting on claimants in libel actions, of pleading facts, from which it would be reasonable for a jury to infer there had been publication of the article in the jurisdiction.[38]Further, the claim is a deliberate attempt to reopen before an English court a variety of issues which were decided in Norwegian civil and criminal courts almost a decade ago and consequently, constitutes an abuse of process. The charge complained of that the Claimant is guilty of harassment is res judicata in Norway, he is estopped from inviting the court to reopen the issue and/or there is no reasonable prospect that Ms Sorte would be unable to justify the charge as true, based on the Claimant’s criminal convictions in Norway in 2001 and 2003.[39]In any event, the staleness of the claim is such that it is a disproportionate interference with Ms Sorte’s right to freedom of expression which is not outweighed in the circumstances of the case by the Claimant’s right to pursue his claim.[40]The Claimant raises a considerable number of arguments in addition to the merits based arguments to which I have already referred, including the following.[41]He says that Ms Sorte made comments about him reported in the Norwegian press, and which were coupled with references to him as “a Muslim” led to a vicious hate email campaign resulting in a complaint by the Claimant to the police in this country. He complains that to date, Ms Sorte is still perpetuating what he describes as “the mental illness myth”. He says that he has incontrovertible evidence from a conversation with Ms Sorte that Ms Schone wanted to drop the case against him in 1996.[42]He denies that his defamation proceedings in Norway were an abuse of the process as the Norwegian Court of Appeal has held (he originally disputed that the court had come to that conclusion, but he now accepts that he was wrong in that respect); and says the Court of Appeal was perverse in so holding. He says his contemporaneous record of the proceedings before the Court of Appeal, showing omissions by the judge and other basic mistakes, formed the basis for his appeal to the Norwegian Supreme Court which that court was wrong to reject. He complains further that his appeal to the Supreme Court was dismissed on 17 March 2004 with no reasons given and about the process in the first instance court in the defamation proceedings. He says the judge erred procedurally in not allowing him properly to cross-examine Ms Schone who was allowed to give what he describes as “so freely her ever –changing, highly sexualised, evidence.” He complains the hearing was a sham, and that he was arrested at the court door for the harassment via his website of Ms Schone. He complains the ECHR was biased against him.[43]He complains his first conviction was obtained against him in absentia and says that recognition of foreign convictions obtained under duress and against natural justice is against UK public policy (as per Rule 44 of the Renvoi principles). So far as his second prosecution is concerned, he says he pleaded guilty under duress.[44]The Claimant says he is not re-litigating decided issues since his litigation in Norway related to one 1998 article in the Drammens Tidende, newspaper. His claim against them was declared null and void by the Court of Appeal on the ground that he had promised two years earlier not to sue if the Norwegian Press Complaints bureau (the PFU) looked into his case (he says he was tricked by the PFU in this respect). He says the most serious allegation (that he is clearly mentally unstable) has not been declared as true by any court of law in Norway.[45]He says he discovered the article after doing a Google search on his name, making this the proper jurisdiction for the hearing of his claim in the United Kingdom. He says the English version of the offending Eiker Bladet article is published each day on the internet and is seen in the UK where he lives and works as a solicitor, and has a reputation to defend. He says the article is accessible in this jurisdiction, and therefore is published here. He says as long as he can access the article via a Google based search under his name, so can third parties. He says that it is only since he discovered the article was available in English on the internet that he has been able to sue in the UK courts; and that the gist of it can be clearly understood even in the Google translation. He says that Google is a facilitator, not a publisher. Mr Hansen would know that but for the existence of his online article in Norwegian, it would never have been translated into English; and that the English version is a reasonably foreseeable consequence of Mr Hansen’s placement of the Norwegian article on his website.[46]The article is not stale, as it has been published every day in Norwegian and English. He accepts he himself has published the article on his own website, but says he has redacted his name from it – this he says makes all the difference since nowhere on the website is his name mentioned.[47]His campaigns against Ms Schone were all true, his reaction was a proportionate response, and his website has been praised by enlightened Norwegians.

Discussion

[48]Apart from matters relied on in support of the claim to aggravated/exemplary damages, the extent of the pleaded case against Ms Sorte is that she was “interviewed and quoted by the First Defendant [Mr Hansen] regarding an article on the Claimant published and/or caused to be published by the First Defendant [emphasis added] on www.pressetjeneste.no” ; and that “the First Defendant published and/or caused to be published in English on www.pressetjeneste.no …defamatory words about the Claimant including those spoken and otherwise sourced from the Second Defendant [Ms Sorte].”[49]It is not suggested Ms Sorte caused the publication of the words attributed to her to the newspaper itself, or on Mr Hansen’s website. Indeed, it is to be noted that there is no obvious case on publication pleaded against her at all. This is consistent with the pre-action approach adopted by the Claimant: his letter before claim dated 10 March 2010, which was addressed only to Mr Hansen, laid responsibility firmly at Mr Hansen’s door, and asked him (but not Ms Sorte) to take down the article from the website.[50]Thus, it seems to me on the face of the Particulars of Claim as pleaded, the Claimant’s claim against Ms Sorte is confined at most, to one of slander in respect of the words spoken by her to Mr Hansen and in my view this gives rise to a fundamental problem with the Sorte claim against her.[51]The Lugano Convention, which governs jurisdictional issues arising between member states of the European Union, Switzerland, Iceland and Norway provides that a person domiciled in a state bound by the Convention may, in another state bound by the Convention, be sued in the place of the defendant’s domicile, or, in matters relating to tort, in the courts for the place where the harmful event occurred. In this case, since the cause of action is one in slander in relation to words spoken by Ms Sorte to Mr Hansen at a face to face interview in Norway, she can only be sued in Norway, which is both the place of her domicile, and the place where the relevant “act” giving rise to the claim occurred. This court therefore has no jurisdiction over the claim.[52]There is an additional potential limitation problem. The relevant conversation between Mr Hansen and Ms Sorte must have occurred by the 11 January 2006 at the latest, since the original article in which Ms Sorte was quoted appeared in Eiker Bladet on that date. It follows by virtue of theLimitation Act 1980 section 4Athat the limitation period expired (at the latest) in respect of any claim in slander, on 11 January 2007. The Claimant certainly knew of the original article by the 19 February 2006, and what Ms Sorte had said in it: he sent a detailed letter to Knut Storberget of the Ministry of Justice in Oslo, on that date complaining about it, saying he had “been accused by Torill Sorte of the usual falsehoods. She has clearly lied again.” Even if therefore, this court did have jurisdiction in respect of a claim in slander, the claim against Ms Sorte would be time barred; and I do not consider an application to disapply the limitation period pursuant to section 32A of the Limitation Act 1980 could conceivably succeed (see Apsion v Butler [2011] EWHC 844 (QB) (23 February 2011 at paras 60-71 for a discussion of that section and the relevant considerations which arise).[53]Were the Claimant to attempt to pursue a case in slander against Ms Sorte, a further problem would arise. As is apparent, part of the Claimant’s complaint is that the words used bore the meaning that he is mentally unwell. This would not be a meaning he could complain of in a claim in slander absent proof of special damage, since it does not fall into any of the categories of allegation which are actionable without such proof by virtue of section 2 of Defamation Act 1952.[54]What if however the Claimant were to attempt to pursue a claim in libel against Ms Sorte on the ground for example, that as the source, in speaking to a journalist for publication, she caused the publication of the article (or at least the part of it in which she was quoted) in this jurisdiction, on ordinary grounds of foreseeability: see for example, McManus v Beckham [2002] 1 WLR 2982 and Richardson v Schwarzenegger [2004] EWHC 2422 (QB)?[55]There may be evidential difficulties in establishing causation since Ms Sorte says in evidence that she deliberately refrained from using the Claimant’s name in interview (a matter not disputed by the Claimant).[56]Putting that difficulty to one side however, in my view, there is no sustainable case in libel here either. In order to give rise to a cause of action in libel, a claimant must either prove publication to one or more third parties in the jurisdiction or facts from which it could safely be inferred that such a publication had taken place. At the hearing, the Claimant mentioned that there were 22 monthly hits on his name, and after the hearing he sent to the court a Google Adwords page, which he says, evidences that claim. There is no evidence as to how it does so. But in any event, in my view, there is no pleaded platform of facts (as it was described by Gray J in Al Moudi v Brisard [2006] 3 All ER 294 at [33]) from which the court could properly or safely infer that any actionable publication has taken place within the jurisdiction in the year before proceedings were issued i.e. from 14 or 21 June 2009 (any earlier publications would of course be statute barred).[57]The mere fact of course that an article is available on the internet does not give rise to a presumption that publication has taken place. As Tugendhat J said in Trumm v Norman [2008] EWHC 116 (QB):
“There is no presumption in law that a claimant on an Internet libel is able to rely on to prove publication. See Al Amoudi v Brisard [2006] EWHC 1062, [2007] 1 WLR 11 at 37. Whether the court is able or willing to infer that such publication has occurred will depend on all the circumstances.”
[58]Here in my judgment, there is nothing in the circumstances which supports any inference that there has been a “sufficient but unquantifiable number of readers” of the publication, and there is nothing in the Claimant’s pleaded case which supports any proper or safe inference that it has either.[59]In my view, it cannot properly or safely be inferred from the prominence of the article on the list of entries when a search is done as the Claimant pleads, that it has been published to a “sufficient but unquantifiable number of readers”. As Mr Hirst points out, and as is demonstrable, a Google search using the Claimant’s full name, may produce the hyperlink to the original article as fourth in the ranking, but it produces only four relevant links in any event (a matter which is not surprising since it is not suggested that the Claimant is a household name). In those circumstances it cannot safely be inferred there is a relationship between the position of the link in the rankings and publication at all. Moreover, if the same search term is entered using two other search engines (bing (Microsoft’s search engine) and Yahoo, the link is even further down the rankings.[60]As for the circumstances, as I have already indicated, the Claimant is not a household name. The press service is a local Norwegian domestic press service published only in Norwegian, including on the web. There is no facility on the website itself to translate its pages into English. The article itself is archived within the website. In my view it would be wholly unreasonable to infer that the article, buried within a Norwegian language media site, has been accessed in this jurisdiction by a casual browser, in the relevant period, let alone one who happened to speak Norwegian (where the total Norwegian population itself is less than 5 million).[61]The Claimant’s real complaint of course is said to be about the Google article, and not the original article. But I do not consider there is anything which fixes the Defendants, either Ms Sorte or Mr Hansen for that matter, with liability for the publication of the Google article on the internet. The “[translate this page]” facility, is a service provided by Google, and not by the Defendants. Further, contrary to the Claimant’s assertion the hyperlink itself does not provide a direct link to the article in English. As Mr Hirst has also demonstrated, there is nothing which would indicate to a person, in one jurisdiction that the service is automatically provided if the article is accessed from abroad. Even if there were however, the use of the facility produces an article parts of it which are simply gibberish and unintelligible; and it doesn’t even do that consistently. As the several versions of the Google article which have been produced in evidence demonstrate, the use of the service at different times, produces a different combination of words even though the general sense of what is published may remain the same. In my judgment it would not be rational, reasonable or just to ascribe tortious liability for the Google article to either Defendant in such circumstances.[62]I turn then to the further argument raised by Mr Hirst, that these actions are an abuse of the process.[63]Mr Hirst has referred me to a number of authorities on abuse of the process, including Bradford v Bingley Society v Seddon [1999] 1 WLR 1482; Johnson v Gore Wood & Co [2002] 2 AC 1; Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14; Schellenberg v BBC [2000] EMLR 296; Pedder v News Group Newspapers Ltd [2003] EWHC 2442 QB; Wallis v Valentine [2003] EMLR 175; Jameel v Dow Jones [2005] 2 WLR 1614 and Kaschke v Osler [2010] EWHC 1075 (QB). The Claimant has referred me to Mardas v New York Times Co [2008] EWHC 3135 (QB).[64]It is clear that when determining whether an action is an abuse of the process, the court should consider all the circumstances and adopt a broad merits based approach.The circumstances in which abuse of the process can arise can vary considerably. The jurisdiction to strike out an action as an abuse of the process derives as Lord Diplock said inHunter v CC West Midlands Police [1982] AC 529at 536 from:
“[An] inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of the process can arise are very varied; …”
[65]Mere re-litigation in circumstances not giving rise to cause of action estoppel or issue estoppel does not necessarily give rise to abuse of the process. Some additional element is required such as collateral attack on a previous decision, or unjust harassment or oppression of the other party.[66]Plainly, it is not the case that the determination of the issues raised in these Norwegian proceedings gives rise to res judicata either by way of cause of action estoppel, or issue estoppel, since the parties in this action and in the proceedings in Norway are different. It must also be borne in mind that a claimant libelled in different contracting states bound by the Lugano convention, may be able to pursue a claim in each of the Contracting states in which the publication was distributed in respect of the harm caused in each of those states: see Shevill and ors v Presse Alliance SA(C68/93) [1995] 2 A.C. 18 ECJ,even though the court recognised at [32] that “there are admittedly disadvantages to having different courts ruling on various aspects of the same dispute.”[67]Nonetheless in my view, it is difficult to characterise the actions here as anything other than an abuse of the process for a variety of reasons which must be considered “in the round”. This is a case where the Claimant now wishes to pursue proceedings in this jurisdiction, against a Norwegian policewoman in respect of words spoken by her to journalist in Norway more than 5 years ago; and in respect of an article which he continues to publish on his own website, albeit without including his name. Some of the events with which it was concerned dated back to the 1990s. At best, there has been an extremely modest publication of the article complained of in this jurisdiction, even if, contrary to my view, there is any publication for which Ms Sorte can be held to be responsible.[68]The allegation that the Claimant is guilty of harassment has been investigated, including by Ms Sorte over a substantial period of time. The Claimant has brought unsuccessful proceedings against Ms Schone for libel, in which the issue of his harassment of Ms Schone over many years, and allegations as to his mental health were specifically considered. The Claimant has been convicted twice now, of Ms Schone’s harassment. There have been a series of adverse findings against him in reasoned judgments in Norway, in both the criminal proceedings against the Claimant and in his civil proceedings for defamation against Ms Schone. Those judgments set out not just the conclusions reached, but the evidence – a good deal of which emanates from the Claimant himself – on which those conclusions are based. Further, in the second set of criminal proceedings the District Court recorded in its judgment that the Claimant had ‘acknowledged guilt’ in court and “has made an unreserved confession.’ The Judge also observed that ‘the defendant [the Claimant] now appears to understand that this matter has been a burden for Schøne, and has assured that he will not act in this way in future”.[69]The Claimant’s appeals following his unsuccessful defamation claim to both the Supreme Court of Norway and to the ECHR have been unsuccessful. He has moreover also pursued, again without success, two complaints about Ms Sorte to the Norwegian prosecuting authorities in which his complaints of perjury about what she has said about his mental instability have been considered and rejected.[70]It is true that Claimant’s conviction by a foreign court is not conclusive evidence in these defamation proceedings that he committed the offence (since section 13 of the of the Civil Evidence Act 1968 applies only to convictions before a court in the United Kingdom). Nonetheless, the Claimant has had an opportunity to contest the issues, on the merits, and in my judgment the court in this jurisdiction is entitled to have regard to the fact of the convictions, in particular in the light of the admission of the Claimant made of his guilt, as I have indicated, as well as to the evidence set out in the judgments, both civil and criminal, much of which, as I have said, consists of a factual recitation of the Claimant’s own words and conduct when determining whether these proceedings, are an abuse.[71]Whilst the Claimant has his own interpretation of events, and his reasons for circulating (and continuing to circulate) information of a highly personal nature about Ms Schone, and latterly, allegations against Ms Sorte on his own website, in my judgment, the evidence that he has in fact harassed Ms Schone, as recorded in the judgments to which I have referred, is overwhelming, and is set out for all to see.[72]It is my view too that the Claimant is harassing Ms Sorte as well, as the selection of telephone messages played to the court demonstrate. As set out above, in his evidence to the court, the Claimant called Ms Sorte “an obvious liar” and claimed that he had not made pestering nuisance calls to her when there can be no doubt that he had.[73]The evidence relied on by the Claimant and indeed his submissions to the court have focused to a considerable extent on the merits of the issues already considered by the Norwegian courts; and it is plain from what the Claimant has said that these proceedings are also an attempt to undermine the judgments of the Norwegian courts and demonstrate that they are wrong.[74]In all the circumstances, I am not satisfied that these proceedings are pursued in order to vindicate the Claimant’s reputation or to obtain injunctive relief. Standing back and looking at the matter realistically, in my judgment, these proceedings are a further aspect of the Claimant’s harassment of Ms Sorte.[75]For all these reasons in my judgment, the Claimant’s action against Ms Sorte must be struck out. It inevitably follows from my determination of the applications in favour of Ms Sorte, that the Claimant’s claim against the MOJP must fail as well, based as it is on the MOJP’s vicarious liability for her conduct. Although Mr Hansen has made no application before me, it is a necessary consequence of the conclusions I have reached that the claim against him is ill-founded. Accordingly, both the Sorte claim and the MOJP claim must be struck out.[76]However, I should say something, albeit briefly about the MOJP’s position. It has relied on same arguments as Ms Sorte, but on a discrete application as well relating to the principle of international law of restrictive immunity, and to the application of the State Immunity Act 1978 ( the SIA). As section 1(2) of the SIA and CPR 6.37.24 make clear, when an application is made for permission to serve out of the jurisdiction on a defendant which is a foreign state, a claimant is obliged to demonstrate at the time the application is made that the foreign state is not immune from suit. If the reasons provided are not proper ones, or no evidence is adduced on the issue of state immunity, these are likely to be grounds in themselves for setting service aside: see Republic of Argentina v NML Capital Ltd [2010] EWCA Civ 41.[77]It is conceded by the Claimant that he failed to comply with those requirements; in particular, no evidence was placed before the court to assist on the issue of state immunity at all; it was simply said that the claim had a reasonable prospect of success, and the Claimant concedes that this was insufficient.[78]Nonetheless, the Claimant resists the MOJP’s alternative ground for setting aside the Order of 16 July 2010 which is made on the ground that the claim was brought against Ms Sorte for things done by her as an officer of state in the execution of her public duty and therefore, that the general rule of state immunity should apply.[79]Mr Hirst submits that the Claimant’s contention that Ms Sorte was engaged in an illegitimate act of a private nature when speaking to Mr Hansen is contradicted by his own pleaded case at paragraph 1 of the Particulars of Claim, that she had authority to communicate with others on behalf of the Ministry. I agree. Further, Mr Reusch, the MOJP’s Attorney, says in his witness statement that police communications with the media are not prohibited, but are recognised to promote better understanding of police work. Ms Sorte’s evidence is that when she talked to Mr Hansen she had already been contacted by a number of journalists about her role as a police officer with responsibility for the Heidi Schone case, that her statements to him were consistent with the public record of the Claimant’s convictions and the judgments in the civil claims made by him and that the Claimant had used the websites of various Norwegian newspapers, and his own website to attack Ms Sorte in her public role (the front page of his website describes her as “Norway’s shamed abuser-in-chief”).[80]The Claimant submits that in speaking to Mr Hansen, Ms Sorte was engaged in a private transaction of her own. Alternatively, it is said one of the exceptions from immunity specified in section 1(1) of the SIA apply, namely that the proceedings in this case relate to commercial transactions (see section 3 of the SIA). The Claimant’s argument is that in supplying information to newspapers which are then sold – or in speaking to the newspaper as part of her job for which she herself was paid, Ms Sorte was thereby engaging in a commercial transaction.[81]In my view both those arguments are misconceived: the proceedings do not relate to a commercial transaction or contract at all, but to a claim in libel: see for example, the opinion of Lord Millet in Holland v Lampen-Wolfe [2000] 1 WLR 1573 at 1587.[82]As it is however, for the reasons given above, the Claimant’s actions are struck out, and there will be judgment for the Defendants in both actions.

Cited in 6 later judgments