This post has been contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.
In a judgement issued on 6 November 2020, the High Court held that England was the appropriate forum for a malicious falsehood claim brought by Qatar Airways (QAG).
The proceedings arose as a result of the economic blockade imposed on Qatar in June 2017 by Saudi Arabia, the United Arab Emirates (UAE), Bahrain and Egypt. This included the imposition of an air blockade, which sought to prevent Qatari registered aircrafts crossing the airspace of the blockading countries (though they were allowed to use designated air corridors to fly in and out of the country).
In August 2017, the UAE-based media network Al Arabiya made broadcast a video about the air blockade, which was subsequently distributed around the world and also became the subject of articles in British newspapers. In the video, a fighter jet was seen firing a missile at a QAG plane (implying that anyone choosing to fly with QAG run the risk of having their plane shot down). It also showed QAG passengers being subjected to hostile treatment on the ground following the interception and forced landing of a QAG plane. Following the publication of the video, QAG initiated proceedings in England against Al Arabiya, two other Middle East-based companies and Middle East News UK Limited (a UK company), claiming that the video contained malicious falsehoods which were commercially damaging to QAG. QAG claimed for publication and losses worldwide but brought their claim in the High Court in England.
The defendants argued that, because QAG had not properly made the case for malice in its pleadings, there was no realistic prospect of it establishing falsity, malice or dishonesty on the facts. They also claimed that the failure of QAG to plead the applicable foreign law was fatal to its claim for relief on a worldwide basis. Additionally, QAG had not provided evidence that any damage suffered by QAG within the jurisdiction would not be significant relative to the damage sustained outside the jurisdiction. Finally, they mounted a forum non conveniens challenge, submitting that England was not the proper forum and that the case should be heard in the courts of the UAE, or those of the Dubai International Financial Centre (DIFC).
The court dismissed Al Arabiya’s challenge to the jurisdiction of English courts to hear the claims.
Judge Saini was of the view that there was a serious issue to be tried because the video was false or conveyed a false impression, that the video was published maliciously with the intention to harm QAG, and that it had caused loss. Consequently, QAG had established a substantial and efficacious act within the jurisdiction and a real and substantial tort.
As regards the argument as regards the failure to plead the applicable foreign law claim, the judge stated that in a case where foreign law would apply in principle, it was enough to establish a serious issue to be tried in order to justify service, if the claimant did not plead the content of foreign law and there was a real possibility of success by applying English law concepts.
When it came to loss, the issue was not where the most substantial publication took place. The issue rather was if there was a real and substantial tort in England and, therefore, it was sufficient that a disproportionately significant proportion of the loss occurred in the UK.
In respect of the forum non conveniens argument, the judge found that there were many factors connecting the litigation to England, as a result of the substantial publication and loss. The UAE, on the other hand, was not considered to be appropriate forum because there had been less publication of the video there (and consequently less loss). Importantly, the judge then considered the importance of the political context in respect of the issue a hand and concluded that the UAE was not an appropriate forum. He stated at 377:
“In the highly political circumstances of this case, the UAE would not be a perceived neutral forum … Any judgment it would give would have less international force.”
“… perhaps of most importance, is that fact that the political situation has created very grave problems for the pursuit of any litigation in the UAE by QAG …”
“I conclude therefore that there is a real risk that anyone involved in QAG’s litigation in the UAE would be committing a crime or threatened with such and this would have a chilling effect on representatives and witnesses.”
“… a major factor which has persuaded me that the UAE is not an appropriate forum is what I would broadly call ‘access to justice’ considerations in what has clearly become a ‘hostile environment’ for Qataris in the UAE.”
As regards the DIFC, the judge also concluded that it had no connection with the case. While DIFC was a neutral litigation island, it was in that regard not superior to the English courts because of the latters’ neutrality.
England, therefore, was deemed to be the appropriate forum, due to the fact that it was a neutral and highly respected forum with no political commitment to either of the parties involved in the proceedings.