England was appropriate forum for worldwide malicious falsehood claim

Malicious falsehood claims:

A malicious falsehood claim is a type of defamation claim which is usually made to protect economic interests against malicious publications that refer to the claimant, their property or their business. The claimant has to prove that the defendant published the false statement with improper motive or malice, that the statement was false and that it has caused the claimant financial loss. However, contrary to a defamation claim there is no need to prove damage to reputation.

Background:

In 2017, Saudi Arabia, UAE, Bahrain and Egypt imposed an economic blockade, including an air blockade, on Qatar. This meant that Qatar registered airlines could only use the airspace of these countries through a permitted air corridor. Al Arabiya aired a video on TV which was also made available worldwide online and on social media. The video suggested that Qatar Airways’ flights in the Middle East would be shot or forced down if they strayed from the permitted air corridor. Qatar Airways claimed that the video conveyed false and misleading messages, that there was a real danger that its flights might legitimately be shot down, and that passengers would be subject to harsh treatment when their planes were grounded. Consequently, Qatar Airways argued that it suffered large scale losses worldwide, in particular in the UK, Middle East and North Africa as the video discouraged customers from flying with Qatar Airways. The airline issued proceedings in England.

The High Court dismissed Al Arabiya’s arguments that i) there was no evidence of malice or falsity in the video, ii) there was no serious issue to be tried, ii) the jurisdictional gateways in CPR 6B.3.1 were not satisfied, and iii) the UAE was the appropriate forum.

Judgment:

This judgment raised a number of interesting issues. The key takeaways are:

Pleading malice and dishonesty: The High Court held that there was a serious issue to be tried and Qatar Airways successfully demonstrated that it had a real prospect that the video was false and/or conveyed a false impression with the motive to harm Qatar Airways and that the wide republication was an intended and foreseeable consequence.

Malicious falsehood in respect of publications outside the jurisdiction: The High Court ruled that the  tort gateway (i.e. where the damage occurred), and the injunction gateway (and “further connected claims”) gateways were met. Even though the malicious falsehood had originated abroad, there had been substantial publication in England which had caused financial loss here. Consequently, there was no reason for the English courts not to have jurisdiction. 

Applicable law and failure to plead foreign Law: The High Court also dismissed Al Arabiya’s argument that Qatar Airways’ failure to plead foreign law was fatal and therefore there was no serious issue to be tried. Instead, the High Court held that Qatar Airways could rely on the presumption that foreign law is the same as English law and consequently, worldwide tort claims can be pleaded without reference of foreign law.

Forum: Further, the High Court dismissed Al Arabiya’s pleadings that the UAE was the appropriate forum on the basis, that: 

1. Qatar Airways had significant connections to England, because it operates part of its business through a branch in England and that is where it has arguably suffered significant loss. In addition, the UK is Qatar Airways’ most important destination and that is where it generates more than 2/3rds of its e-commerce revenue; and

2. The UAE would not be a neutral forum given the political impact on this case and the real risk of injustice to Qatar Airways.

Therefore, England was deemed as appropriate forum.

Consequences of the judgment:

This judgment highlights that the English courts will exercise jurisdiction in respect of worldwide tort claims where there is a significant connection to England and/or significant loss was suffered in this jurisdiction. This decision will be of interest to international companies that may be the subject of malicious falsehood or other tort claims where videos or articles are distributed worldwide and where the loss is likely to be suffered in multiple jurisdictions. It again demonstrates that the English courts, and the English legal system, may be best placed to deal with claims of this kind. 

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