HECHO IMPONIBLE

Justice Baker494 ruled that r6.14 fixes the date for all CPR purposes, including the date of service in Scotland. Whereas in the case of Paxton Jones [2017]495, the court concluded that the ‘deeming provisions’ (r6.14) operate as a means of calculating other deadlines i.e. acknowledgement of service within 14 days and defence (see-6.8.2.1).

The above proves the distinction between ‘deemed date’ and ‘actual date’ of service. There may be further complications in applying these complex rules to social media defamation because there can be different defendants in different jurisdictions. The claimant may have to request specific permission to serve every defendant.

Similarly, if some of the defendants are based in England and one of them is outside England, the claimant will have to serve all defendants within the jurisdiction and outside the jurisdiction. The wording of r6.14 fixes the deemed date of service for “a claim form served” whereas no such provision is made for ‘actual date of service’. Interestingly, a defendant can only challenge jurisdiction once service is completed.

2.12.3.: Part 11 – disputing the court jurisdiction:

If valid service took place, English court can exercise personal jurisdiction over a foreign-based defendant. The defendant has a right to choose the court where he wishes to litigate the matter by disputing English jurisdiction496. Both EU and non-EU based defendants can challenge English jurisdiction.

494

Brightside v RSM UK Audit [2017] 1 WLR 1943. 495

Paxton Jones v Chichester Harbour Conservancy [2017] EWHC 2270. 496 _{VTB Capital Plc v Nutritek International Corpn [2013] UKSC 5.}

106

If the defendant is an EU national, he has to prove that Brussel Regulation 1215/2102 is not properly applied (this is beyond the scope of this thesis). On the other hand, if the defendant is a UK national and wishes the proceedings to be brought in Scotland or Ireland rather than England he has to show that it will be more convenient if the matter is resolved in other state497. The normal standard of natural forum is shifted towards ‘convenience’ and instead of actual service, the applicable rule will be deemed service (see-2.12.2.1). The defendant who is neither based in the UK or EU has to prove498:

1. CPR r6.36 is not properly applied (see-2.12.1.2) 2. England is not an appropriate forum (see-2.17.1)

CPR r11 allows a defendant to dispute English court’s jurisdiction499

. CPR r11 (1) provides that a defendant can apply to the court:

1. Who wants to dispute the court’s jurisdiction500

2. Who argues that the court should use its discretion to exercise its jurisdiction501

CPR r11 (2) determines that the defendant has to acknowledge service of the claim form before applying for an order to dispute jurisdiction502, which must be in writing under Part 10503. Acknowledgement is compulsory because if the defendant is unsuccessful in his application, the court may start the proceedings without further delay504. However, the acknowledgement of service does not mean that the defendant cannot dispute the court’s jurisdiction505

. CPR r11 (4) provides that any application by the defendant must be filed within 14 days506, with all the supporting evidence. The defendant can also request English courts to grant a retrospective extension of time where appropriate507.

497

Cumming v Scottish Daily Record and Sunday Mail [1995] EMLR 538; the defendant can also object England jurisdiction if the proceedings have already started in other part of the UK.

498 _{Standard Bank Plc v Efad Real Estate Company WLL & Ors [2014] EWHC 1834.} 499

Zumax Nigeria v First City Monument Bank plc [2014] EWHC 2075; Polymer Vision v Van Dooren [2011] EWHC 2951 (Comm) as per justice Beatson.

500 _{Bank of Boroda, GCC Operations v Nawayny Marine Shipping FZE [2016] EWHC 3089} 501

Erst Group Bank AG v JSC “VMZ Red October” [2013] EWHC 2926. 502

Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537.

503 _{The defendant must fill in form N9, provide the service address and lawyers business address and} should sign the declaration.

504

GMBH v F&M Bunkering Ltd [2014] EWHC 192 (Comm) as per Mr Justice Blair. 505 _{Peretz Winkler and another v Angela Shamoon and others [2016] EWHC 217.} 506

The Alexandros T [2013] UKSC 70; as per Lord Clarke made it clear that this time limit of CPR Pt 11(4) is not in contrary to Article 27 of the Judgments Regulation.

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CPR r11 (5) provides that if the defendant does not make such application, he will be considered to have submitted to the court’s discretion508

. Even after the lapse of the allocated time limit, the defendant may still apply to the court to dispute jurisdiction - such an application may be very weak and may be set aside509.

2.12.3.1: If jurisdiction is disputed:

If the defendant can satisfy the judge that there is another more appropriate forum, the burden then shifts back to the claimant to show that there are special circumstances in the interests of justice for the case to remain in England (see-7.12). However, the defendant who wants to challenge jurisdiction must follow the relevant procedure510 because failure to comply with stricter rule may result in a waiver of the right to dispute the jurisdiction511. It is important to note that CPR r11 is not concerned about territorial jurisdiction, but the authority and power of the court512 (r6.20 and r2.3 are concerned with territorial jurisdiction). If a court has territorial jurisdiction, it may allow a claimant to serve a claim form on a foreign defendant in any overseas territory513, and then the defendant can challenge it. Anthony Clarke514 stated that an issue related to service could only be raised once the territorial jurisdiction is established.

Considering the complex nature of social media defamation this thesis submits that traditional CPR provisions can cause “unfortunate tension” between CPR and the Defamation Act provisions.

508 _{It fulfils a legitimate aim to make sure that whether the proceedings are to be tried on their} substantive merits in England are taken promptly and without unnecessary costs. It also satisfies the principle of legal certainty because parties need to know where they stand.

509 _{Hallam Estates v Baker [2014] EWCA Civ 661.} 510

Newland Shipping and Forwarding Ltd v Toba Trading FZC [2017] EWHC 1416. 511

Strickson v Preston County Court [2006] EWHC 3300; the court held that the defendants had waived the right to challenge jurisdiction by filing an acknowledgment of service and then failing to apply to dispute jurisdiction under CPR 11.

512

The definition of "jurisdiction" is not exhaustive – it may be used in 2 meaning: (1) Territorial and (2) Authority and power.

513

The rules to serve documents outside England and Wales are detailed in practice direction 6 B that supplements section IV of CPR r6 – service out of the jurisdiction.

108 Chapter 2

Part C

The Defamation Act 2013

2.13.: The interpretation of the Act:

This section will discuss the likely practical implications of the Defamation Act 2013. A list of all the provisions are attached (see Appendix-VI)

2.13.1.: Relevant provisions:

Sections 1, section 8, section 9 are directly relevant areas for this research.

2.13.1.1.: Section 1 - Serious Harm:

The serious harm threshold is defined: “A statement is not defamatory unless it has caused (or is likely to cause) serious harm to the claimant”. This requirement of Section 1 is in addition to existing definitions of defamatory meaning because claimants have to show that the statement:

1. Caused or is likely to cause serious injury to the claimant’s reputation

2. Tends to lower the claimant in the estimation of right-thinking members of his