Wasted costs and hopeless jurisdiction claims

Today in the High Court in London Mr Justice Cavanagh dismissed a solicitor's renewed application for permission to appeal against a wasted costs order made against them in the case of Jovicic & Others v The Serbian Orthodox Church-Serbian Patriarchy [2020] EWHC 2229 (QB) , [2021] P.N.L.R.3.

In Jovicic, Kesar & Co solicitors brought 6 separate proceedings in the High Court against the defendant church on behalf of citizens of Serbia, Croatia and Bosnia-Herzegovina. The claimants alleged they were victims of abuse in those countries by clergy belonging to the defendant church. None of the claimants had any connection whatsoever with England & Wales, and no basis for English jurisdiction was ever asserted, except that England constituted an alleged "forum of necessity" and / or  jurisdiction should be exercised in the "interests of justice" based on the claimed impossibility of the claimants obtaining a fair hearing elsewhere. Such claims involved fundamental mis-readings of the decision of the House of Lords in Connelly v RTZ Corp Plc (No. 2) [1988] AC 854, and the decision of the TCC in His Royal Highness Okpabi v Royal Dutch Shell Plc [2017] EWHC 89 (TCC), [2017] Bus. L.R. 1335, and ignored the fact that English law does not provide for the exercise of such forms of "universal jurisdiction", as was highlighted by the ECHR in the case of Nait-Liman Switzerland (51357/07) [2018] 3 WLUK 861.

No grounds for seeking permission of the court to serve out existed and no application had been made. Instead, the solicitors purported to serve proceedings on a London parish Serbian Orthodox church, itself a separate registered UK charity, who belonged to an eparchy (diocese) whose headquarters was in Scandinavia. In fact, the claim forms were not served in time, and a subsequent application to extend time, was not pursued by Kesar & Co who did not attend the listed hearing.

On 17 January 2020, the defendant church's challenge under CPR Part 11 was successful and Master Cook had ordered Kesar & Co to show cause as to why a wasted costs order should not be made against them. After further evidence and detailed oral submissions, Master Cook had made a wasted costs against Kesar & Co, subject to detailed assessment on an indemnity basis in August 2020. To view the full Judgment click here.

The solicitor's application for permission to appeal had been refused on paper by Mr Justice Johnson in November 2020. After a morning's renewed oral submissions, Mr Justice Cavanagh gave a detailed ex tempore judgment refusing permission to appeal. Kesar & Co's claim to English jurisdiction had been hopeless on the merits. The Master had been perfectly entitled to make the orders he had made.

Michael McParland QC acted throughout for the successful defendants. Michael was instructed by Paul Donnelly and Samantha Chambers of DWF LLP, Birmingham.