Grovit v Jan Jansen

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 22 September 2020
• Neutral Citation: [2020] IEHC 501
• Docket Number: [2014 No. 6748 P]
• Court: High Court
• Date: 22 September 2020

BETWEEN

FELIX GROVIT

PLAINTIFF

- AND -

HENDRIK JAN JANSEN

DEFENDANT

[2020] IEHC 501

Niamh Hyland

[2014 No. 6748 P]

THE HIGH COURT

Defamation – Negative declaration – Jurisdiction – Defendant seeking to strike out the plaintiff’s claim – Whether the Irish courts had jurisdiction

Facts: The defendant, Mr Jansen, applied to the High Court seeking to strike out the claim of the plaintiff, Mr Govit, on a number of grounds. The plaintiff died on 26 August 2018 and the proceedings were being continued by an administrator ad litem. The defendant, a Dutch national, was pursuing the plaintiff (who was born in India, and later became resident and domiciled in the UK) and his son, in legal proceedings in the Netherlands. The defendant sought to enforce a substantial money judgment he obtained against a corporate entity, Carigna, personally against the plaintiff and his son (the Dutch debt proceedings). The proceedings brought by the plaintiff were in respect of alleged defamation. They also included an application for a negative declaration. The Irish proceedings had the effect of staying the Dutch debt proceedings since 2016 on the basis that the Irish courts were first seised for the purpose of jurisdiction with the claim for a negative declaration. The defendant sought to strike out the plaintiff’s claim on the basis that the Irish courts did not have jurisdiction, or, in the alternative, if they had jurisdiction that the proceedings should be struck out on various grounds, including that the words in question benefitted from privilege and/or that they were not capable of bearing a defamatory meaning, that the matter was statute barred and that the proceedings were an abuse of process.

Held by Hyland J that the Irish courts had no jurisdiction in relation to the negative declaration; that in respect of certain words alleged to be defamatory, they should be struck out on the basis of her jurisdiction under s. 14 of the Defamation Act 2009 i.e. that they were not capable of bearing a defamatory meaning; and in respect of other words alleged to be defamatory, that a preliminary issue should be heard as to whether they were statute barred.

Hyland J held that she would: (a) give the plaintiff liberty to amend its plenary summons to correct the defective endorsement; (b) dismiss the proceedings insofar as they sought a negative declaration on the basis that the Irish courts had no jurisdiction in respect of this part of the claim; (c) dismiss the proceedings insofar as they sought relief in respect of the allegedly defamatory notice pursuant to s. 14 of the 2009 Act on the basis that it was not capable of bearing the defamatory meaning alleged; (d) direct a preliminary issue pursuant to Order 25, Rule 1 and/or Order 34, Rule 2 of the RSC as to whether the claim in respect of the website statement was statute barred.

Proceedings dismissed in part.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 22 September 2020

Introduction

1 This is an application by the defendant seeking to strike out the plaintiff's claim on a number of grounds. The plaintiff died on 26 August 2018 and the proceedings are being continued by an administrator ad litem. The defendant, a Dutch national, is currently pursuing the plaintiff (who was born in India, and later became resident and domiciled in the UK) and his son, Stefan Grovit, in legal proceedings in the Netherlands. The defendant is seeking to enforce a substantial money judgment he obtained against a corporate entity, Carigna, personally against the plaintiff and his son (the “Dutch debt proceedings”).

2 The within proceedings brought by the plaintiff are in respect of alleged defamation. They also include an application for a negative declaration. The Irish proceedings have had the effect of staying the Dutch debt proceedings since 2016 on the basis that the Irish courts were first seised for the purpose of jurisdiction with the claim for a negative declaration. The defendant now seeks to strike out the plaintiff's claim on the basis that the Irish courts do not have jurisdiction, or, in the alternative, if they have jurisdiction that the proceedings should be struck out on various grounds, including that the words in question benefit from privilege and/or that they were not capable of bearing a defamatory meaning, that the matter is statute barred and that the proceedings are an abuse of process.

3 For the reasons set out below, I have concluded that the Irish courts have no jurisdiction in relation to the negative declaration; that in respect of certain words alleged to be defamatory, they should be struck out on the basis of my jurisdiction under s. 14 of the Defamation Act i.e. that they are not capable of bearing a defamatory meaning, and in respect of other words alleged to be defamatory, that a preliminary issue should be heard as to whether they are statute barred.

Background and Chronology

4 The background to these proceedings is complex as it involves a number of proceedings issued in various jurisdictions. Those proceedings are identified below.

Proceedings by the defendant against Carigna

5 The defendant, a hotelier, operated a hotel in Amsterdam and leased that building from a company called Carigna Investments NV, t/a Chequepoint Netherlands (part of the Chequepoint group). The plaintiff was the founder of this group of companies but was not a director or shareholder of Carigna. As part of the lease agreement, Carigna had granted the defendant a pre-emption right, so if the building was ever offered for sale, he had first refusal. However, Carigna breached that pre-emption right and sold the building to a third party without first offering it to the defendant in February 1999.

6 The defendant obtained judgment against Carigna on 12 May 2010. It was appealed, was upheld and became final on 13 May 2013. That judgment has not been satisfied. The underlying figure owed by Carigna on foot of that judgment, including interest, is in excess of €15 million.

Article 186 Procedure

7 Following the unsatisfied judgment against Carigna, the defendant decided to bring proceedings against the plaintiff and his son, Stefan Grovit, on the basis that the plaintiff was a shadow director of Carigna and so responsible for the debt. On 16 August 2013, Bos & Partners wrote to the lawyers for the plaintiff and his son notifying them of their intention to make an application to court to summon witnesses, including the plaintiff and his son, to appear and be examined.

8 The application under Article 186 (1) was initiated on 11 October 2013. Article 186 (1) of the Dutch procedural code allows a prospective plaintiff who intends to initiate civil proceedings to ask for the examination of witnesses in advance of the action to decide whether or not to bring proceedings. The defendant sought to depose a number of people in relation to the level of control that the plaintiff exercised over the Chequepoint Group and Carigna.

9 The Order under Article 186(1) was obtained on 20 March 2014. Amsterdam District Court granted the defendant leave to summon the plaintiff and his son to give evidence.

10 Various attempts were made, through email to try to secure the voluntary co-operation of the plaintiff to comply with the Court Order. On 22 April 2014 the Amsterdam court scheduled witnesses to be heard on 19 August 2014 including the plaintiff and his son. On 2 June 2014 the Court of Amsterdam made an Order, confirmed by telephone, that the plaintiff should be summoned by advertisement in a newspaper, De Telegraaf, in the Netherlands on 14 June 2014 and in the Times of London on 19 June 2014 (“the Notice”) and the London Gazette, as it was the belief of the defendant that the plaintiff was domiciled in London. There is no written order of the Amsterdam court to this effect. The Notice is set out in full below but in summary, it indicated that Mr. Grovit and his son Stefan Grovit were being summonsed as witnesses at the request of the defendant to a preliminary hearing regarding facts summarised in the petition.

Dutch Debt Proceedings

11 In December 2014 proceedings were issued in the Netherlands entitled Hendrik Jan Jansen v. Felix Fareed Ismail Grovit & Stefan Carim Ismail Grovit case number C/13/583768 (the “Dutch debt proceedings”) seeking to establish the level of control the plaintiff and his son exercised over the company Carigna and ultimately to enforce the Carigna judgment against them personally. On 7 September 2016 a stay was granted in those proceedings on the basis that the Irish courts were first seised in the matter having regard to the Irish proceedings described below. In that decision the Court found that as proceedings involving the same parties and the same cause of action had been issued in the jurisdiction of another Member State (i.e. Ireland) the Dutch courts had to stay the proceedings before them. If the Irish Courts were to find that they had jurisdiction the Dutch Courts would decline jurisdiction, otherwise the Dutch Court would then proceed with the application.

Dutch defamation proceedings

12 On 17 May 2013, an article was published in a Dutch financial newspaper, Financielle Dagblad, about the proceedings against Carigna and a short extract from that article was re-published on the website of Bos & Partners, lawyers for the defendant (“the Website statement”). This article became the subject of defamation proceedings in the Netherlands. The plaintiff sought interlocutory relief on the basis that the Website statement was defamatory of him, and he sought an order restraining further publication and an order for its removal from the website of Bos & Partners.

13 Judgement in interlocutory proceedings was given by the Rotterdam District Court on 27 June 2013 in Grovit v. Hendrik Jan Bos & Bos & Partners Advocaten B.V. case number C/10/425941/KG ZA 13 512. That court rejected the claims and ordered...