Grovit v Jan Jansen

• Jurisdiction: Ireland
• Judge: Mr Justice Binchy
• Judgment Date: 17 January 2018
• Neutral Citation: [2018] IEHC 22
• Docket Number: [2014 No. 6748 P.],[2014 No. 6748 P]
• Court: High Court
• Date: 17 January 2018

[2018] IEHC 22

THE HIGH COURT

Binchy J.

[2014 No. 6748 P.]

BETWEEN

FELIX GROVIT

PLAINTIFF

AND

HENDRIK JAN JANSEN

DEFENDANT

Practice & Procedure – O. 13, r. 11 of the Rules of the Superior Courts – Delay in proceedings – Misleading information – Defamation

Facts: The defendant brought an application pursuant to O.13, r.11 of the Rules of the Superior Courts, whereby he sought to have set aside orders made by the High Court in favour of the plaintiff to the effect that the plaintiff should have recovered the relevant amount from the defendant. The defendant contended that he was aware of the proceedings but claimed that he was not properly served and accordingly, he had no obligation to enter in an appearance to the proceedings or otherwise engage with the same. The defendant contended that the plaintiff had placed inaccurate and misleading information before the Court at the time of hearing of the motion for judgment. The defendant put forward two arguments to the proceedings. The first was that the notice was published on an occasion of either qualified or absolute privilege. The plaintiff argued that the contents of the notice were defamatory of him and as a result of which he had issued the present proceedings. The plaintiff contended that the defendant was aware of the proceedings.

Mr. Justice Binchy set aside the orders of the High Court. The Court, however, affirmed the orders relating to the costs made in the impugned judgments. The Court held that there were irregularities in the manner in which the judgment was obtained and that the defendant had a good defence with good prospect of success. The Court further held that the defendant should pay the plaintiff his costs incurred for the present application.

DECISION of Mr Justice Binchy delivered on the 17th day of January, 2018

1 This is an application brought by the defendant pursuant to O.13, r.11 of the Rules of the Superior Courts, whereby he seeks to have set aside orders made by this Court on 8th December, 2014 (O'Malley J.) and 9th July, 2015 (Kearns P.). The background to those orders, and to this application, is somewhat unusual.

2 In May 2010, the defendant obtained a judgment against a company of the name Carigna Investments N.V. ('Carigna') which, according to the defendant, trades under the name Chequepoint Netherlands. According to the defendant's grounding affidavit, Carigna is registered in Curacao, an island in the Caribbean, but the defendant obtained the judgment referred to in the Dutch Courts, pursuant to which he was awarded damages of €3,858,411.00, together with costs and interest calculated from 5th February, 1999. It is claimed that when interest is added, Carigna is now indebted to the defendant for an amount exceeding €15 million.

3 The defendant further claims that Carigna has no assets with which to discharge the judgment which he has obtained against it, and that this is owing to the actions of the plaintiff and his son, Stefan Grovit. The defendant claims that the plaintiff and Stefan Grovit have control over Carigna and that they have exercised that control so as to strip Carigna of its assets and thereby deny the defendant of the benefit of the judgment that he has obtained against Carigna.

4 The defendant has advanced these claims against the plaintiff and Stefan Grovit in proceedings in the Dutch Courts (the 'Grovit' proceedings). The Grovit proceedings are currently stayed pending the final determination of these proceedings. The procedural history of the Grovit proceedings is summarised by an affidavit sworn on behalf of the defendant in these proceedings by his Dutch lawyer, namely Mr. Hendrik Jan Bos. In this affidavit, Mr. Jan Bos avers that because the plaintiff's address was unknown, and because his lawyer refused to accept service of documents, it was necessary to publish a notice in newspapers both in the Netherlands and in England putting the plaintiff and Stefan Grovit on notice of the Grovit proceedings and in particular proceedings scheduled to take place at a session of the Amsterdam Court on 19th August, 2014. This notice (the 'Notice'), which appeared in The London Times on 19th June, 2014 was in the following terms:-

'Public Notices

Mr. Felix Fareed Ismail Grovit and Mr. Stefan Carim Ismail Grovit. Through my summons dated 13th June, 2014, I have at the request of Hendrik Jan Jansen, living in Amsterdam, the Netherlands, chosen address (1075AA) Amsterdam, the Netherlands, Koningslaan 17, at the offices of Bos and Partners Advocaten, H.J. Bos, Attorney, summoned as witnesses: Mr. Felix Fareed Ismail Grovit and Mr. Stefan Carim Ismail Grovit, both with no known address or whereabouts inside or outside the Netherlands, to appear in person on 19th August, 2014 at 9:30hrs at the session of the Amsterdam Court, Paknassusweg 220, Amsterdam, the Netherlands, to be heard, at the request of Hendrik Jan Jansen under oath as a witness, within the scope, the preliminary hearing as allowed by the Amsterdam Court on 20th March, 2014, regarding the facts as outlined in the petition which can be inspected at the offices of H.J. Bos, aforementioned, bit (sic) not exclusively, the position of the witness at Carigna Investments N.V., trading as Chequepoint Netherlands, from February 1999 up and until February 2013.'

5 Mr Jan Bos avers that this notice was published with the authority of the judge presiding in the Amsterdam Court at the preliminary hearing. Mr Jan Bos said that this permission was obtained from the presiding judge through contact made with that judge by Mr Jan Bos's firm, by telephone. Accordingly, there is no formal record of that order.

6 In any case, the notice came to the attention of the plaintiff who claims that the contents of the notice are defamatory of him, and as a result of which the plaintiff issued these proceedings. The plenary summons issued on behalf of the plaintiff states that the publication was available in this jurisdiction and it is apparently on that basis that the proceedings were issued in the State, but it was never explained, at the hearing of this application at least, why the plaintiff chose to advance proceedings for defamation of his character in this jurisdiction rather than England, where the plaintiff resides, and in which jurisdiction The Times must surely have its principal circulation.

7 The plaintiff's solicitors then purported to serve these proceedings on the defendant at the address stated in the Notice i.e. the address of the defendant's lawyers in Amsterdam. This service was effected by registered post, by the solicitors acting on the plaintiff's behalf. The plaintiff also claims that documents in these proceedings were served personally on the defendant by the plaintiff's lawyers in the Amsterdam Court in August 2014.

8 The defendant acknowledges his awareness of these proceedings but claims that they were never properly served upon him and accordingly he had no obligation to enter in an appearance to the proceedings or otherwise engage with the same. In para. 21 of his affidavit grounding this application, the defendant avers as follows:-

'I was aware of the existence of the Irish defamation proceedings, which were repeatedly mentioned by the plaintiff in the context of the Grovit Proceedings. However, since I was never validly served in accordance with EU and Dutch law, I say and am advised that I was under no obligation to enter an appearance in those proceedings. I say and I am advised that valid service of an originating notice of summons was a necessary precondition for the court to assert extra-territorial jurisdiction in this case, and the court has no discretion to overlook the plaintiff's failure to follow the service procedures laid down by EU and Dutch law.'

9 So it is not in dispute that the plaintiff was aware of these proceedings; on the contrary, he deliberately elected not to engage with these proceedings because he was advised that he had not been properly served with the same. As a result, a motion for judgment in default of appearance issued in October 2014, and came on for hearing before O'Malley J. on 8th December, 2014. This motion was grounded upon an affidavit of service of a Kieran Friel, a trainee solicitor in the office of the plaintiff's solicitors wherein he deposed as to service of the proceedings upon the defendant. In para. 4 of his affidavit Mr. Friel avers:-

'I say that I caused the plenary summons dated 1st August, 2014 to be served on the defendant on 20th August, 2014 by sending a true copy of same by pre-paid registered post to the address chosen by the defendant and printed in The Times newspaper on 19th June, 2014. I say same was received and was not returned. I beg to refer to a copy of the postal receipt upon marked with the letters 'KF3' and a copy of the tracking receipt showing that it was delivered and upon marked with the letters 'KF4' I assigned my name prior to the swearing hereof. I further beg to refer to the affidavit of service for myself dated 29th October, 2014.'

10 Mr. Friel also avers in this affidavit that a draft of the plenary summons was served on the defendant on 1st August, 2014 by registered post and by email. He further avers that:-

'after the draft plenary summons was served on the defendant these proceedings were discussed at court in Holland by the defendant and his legal representative on 19th August, 2014. I say that the draft plenary summons was served on the same address as the plenary summons. I therefore believe that the defendant is fully aware of the within proceedings herein but has not entered an appearance.'

11 The order of O'Malley J. of 8th December, 2014 records in the usual way that the court read the affidavit of service and the plenary summons, as well as the statement of claim which was filed by the plaintiff in lieu of delivery on 12th November, 2014. There being no appearance, O'Malley J....