Court of Appeal overturns High Court decision that had declined jurisdiction to hear a defamation claim on the grounds of there being “related” ongoing proceedings in Poland

The claimant, Euroeco Fuels (Poland) Ltd, is the Polish leaseholder of a site in the Baltic port of Szczecin in Poland from where it operates an industrial scale alternative petrochemical production plant, which recycles used tyres into carbon and oil products.

The defendant company, Szczecin and Swinoujscie Seaports Authority SA (SSSA), is the landlord of the plant site and the administrator of the ports of Szczecin and Swinoujscie.

Before these proceedings began, SSSA had issued proceedings in Poland against Euroeco alleging that the plant was causing a nuisance because of the odours it emitted.

In March 2017, one of SSSA’s directors, Mr Milewski, said during a press conference in Poland that the plant was emitting excessive levels of benzene and that in some cases the legal limits were being exceeded by several hundred per cent. A press release was also issued to the press and other media, whose reach included England and Wales.

Euroeco issued proceedings in England and Wales for defamation and malicious falsehood relying on republications of the words spoken and the press release by means of internet articles, which were read here, and by means of Polish internet broadcasts that were also available here. The claim form was served on SSSA in Poland. SSSA disputed the English court’s jurisdiction.

At first instance, Mr Justice Nicol declined jurisdiction to hear and determine the claims under Article 30(2) of the Recast Brussels Regulation (1215/2012/EU) concerning related actions. Euroeco therefore appealed.

Giving the lead judgment, Lord Justice Bean noted that under Article 30 there are two separate discretions which may be exercised: to stay or not to stay (Article 30(1)), and to decline or not to decline jurisdiction (Article 30(2)). Each depends on the two actions being “related” as defined by Article 30(3). Therefore, unless the two actions fell within the definition, they were not related and the two discretions simply did not arise.

So, for the discretion to stay the proceedings under Article 30(1) to arise, the actions had to be related. However, for the discretion to decline jurisdiction altogether under Article 30(2), Bean LJ said that not only did the actions have to be related, but the law of the court first seised also had to permit the two actions to be “consolidated”.

Article 30(3) states that actions are related, “where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”.

Bean LJ disagreed with Nicol J that “together” meant “together in the same Member State”. If that was what the legislature had intended, it would have used that phrase, rather than just the word “together”.

Further, the two actions had to be not only “heard” together, but also “determined” together. In Bean LJ’s view, this meant that, even if the two actions could not be consolidated, they would be tried by the same judge in the same court, and that judgment would be given in both actions at the same time, rather than by separate judges at separate times.

Given that one of the actions was for nuisance and the other for libel, Bean LJ said that it was unlikely that they could be tried in the same court before the same judge. The expert witnesses on Polish law agreed, stating that a libel claim in Poland must be brought in the civil division of the general court, whereas the emissions lawsuit had to be brought in the commercial division.

Nicol J had therefore been wrong to find that he had discretion to decline jurisdiction or to order a stay under Article 30.

Bean LJ also considered the issue of the risk of irreconcilable judgments, finding that the central issue in both actions would be whether Euroeco was causing or permitting harmful pollution to the atmosphere around the plant. Therefore, to allow the libel claim to proceed to trial in England would create a risk of “irreconcilable judgments”. However, these views could not prevail against the earlier conclusion that there was effectively no prospect of the two actions being “heard and determined together”. The appeal was allowed. (Euroeco Fuels (Poland) Ltd v Szczecin and Swinoujscie Seaports Authority SA [2019] EWCA (11 November 2019) — to read the judgment in full, click here.