Qatar Airways Group Q.C.S.C. v Middle East News FZ LLC & Ors  EWHC 2975 (QB)
In June 2017, a number of Middle-Eastern states including Saudi Arabia and the United Arab Emirates (UAE) imposed a blockade on Qatar, which included cutting economic ties and the imposition of a land, sea and air blockade. In these proceedings, Qatar Airways (the international airline owned by the Qatar state) brings claims for malicious falsehood, conspiracy and unlawful interference against the Al Arabiya news network (owned, at least in part, by the Saudi state) arising out of a video published by Al Arabiya in August 2017.
Qatar Airways’ case is that the video showed, amongst other things: (1) a fighter jet firing a missile at a Qatar Airways passenger jet, thereby suggesting that if people chose to fly with Qatar Airways there was a serious risk that their aircraft would be shot down and they would be killed; and (2) Qatar Airways passengers being subjected to hostile treatment on the ground following the interception and forced landing of a Qatar Airways jet. The contents of the video were described variously by journalists and commentators in the media storm that followed publication as an “overt threat”, a “chilling warning” and “horrifying”.
Qatar Airways claimed for publication and losses worldwide but brought their claim in England in the Media and Communications List of the High Court. The Defendants brought a jurisdiction challenge, arguing that the case should be heard in the Courts of the UAE or the Courts of the Dubai International Financial Centre (DIFC) and that England was not the proper forum.
In a judgment handed down on 6 November 2020, Mr Justice Saini dismissed the jurisdiction challenge brought by the Defendants.
The Judge concluded that there was a serious issue to be tried, amongst other things, that the video was false or conveyed a false impression, that it was published maliciously with the motive of harming Qatar Airways, that senior persons were involved in the instigation/creation of the video, and that the video has caused loss.
On forum conveniens, the Judge rejected the Defendants’ submission that either the UAE or the DIFC was the proper forum for the claims. He found that there were many factors connecting the litigation to England, where (at least arguably) there had been substantial publication and loss. However, in contrast, he found that the UAE and the DIFC were not appropriate fora. This was partly because there had been less publication and loss in the UAE. But the Judge also found that the UAE was not an appropriate forum because the “measures taken by the UAE [i.e. as part of the blockade] create a hostile environment for [the Claimant] and any Qataris operating in the UAE” and that “there is a real risk that anyone involved in [the Claimant’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”, and that this would apply to litigation in the DIFC as well. In relation to the DIFC, the Judge also concluded that the DIFC had no connection with the case; and that while it was a neutral “litigation island”, it was in that regard not superior to the English courts which were neutral also.
The Defendants had also argued that in relation to malicious falsehood, the English courts could only have jurisdiction over English publication, but Mr Justice Saini concluded (accepting what he described as an “ambitious and bold” submission by Qatar Airways’ counsel) that there was no rule that effect, merely a historical assumption as to the effect of previous jurisdictional rules.
The judgment also contains a number of important points on the pleading of foreign law, amendments to Particulars of Claim after the expiry of a limitation period, the scope of the malicious falsehood cause of action, and the construction of several of the service gateways in CPR PD6B. Of particular interest is perhaps the conclusion that when pleading a worldwide tort claim it is legitimate to rely on the presumption that foreign law is the same as English law in order to establish a serious issue to be tried, and it is not necessary to plead the content of all (or even samples of) the foreign laws. In relation to CPR PD6B para 3.1(4A), the Judge accepted that claims for publications and losses worldwide arose out of the “same or closely connected facts” to publications and losses in England.