A King of Spain, a Danish entrepreneur and a cross border harassment claim
6th November, 2023
Could the former King of Spain, living in Abu Dhabi, be sued in the Courts of England and Wales by a Danish international businesswoman who resides in Monaco and has a home in England?
The High Court held that he could not…
Few disputes feature an intimate relationship with a former head of state, an elephant-hunting trip in Botswana and an “unconditional gift” of €65m. Unfortunately, all relationships, whether personal or business, have the potential to break down and form the basis of disputes. In a global, inter-connected world, these relationships frequently cross international borders. As this salutary case demonstrates, when cross-border disputes arise, clear legal advice is required from the outset.
The Claim: Harassment
Ms zu Sayn-Wittgenstein-Sayn brought a claim of unlawful harassment against Juan Carlos I. Harassment is a “tort” (a legal term which covers a wide range of claims from negligence to trespass to defamation). In broad terms, harassment is established when an individual undertakes an oppressive and unacceptable course of conduct which causes a person alarm or distress. This can give rise to civil or criminal liability. In this case, the claimant alleged that Juan Carlos had gifted her €65m, to hide the money from the Spanish tax authorities, and that she was then harassed by Spain’s former King, or people acting on his behalf, when she would not give him access to it.
The Court held that the Claimant had failed to set out reasonable grounds for bringing her claim and that her allegations that Juan Carlos had had orchestrated threats, surveillance and intimidation were “not sufficiently evidence-based”. The Claimant provided “a general narrative history of her relationship with the Defendant both emotional and financial”. However, she failed to convert “her narrative history into a claim in harassment which it is fair to ask the Defendant to defend, or a court to try”.
That was, in part, because the court rules understandably require parties to formally set out such claims very carefully. The Court held that “where a claimant relies on the cumulative and corrosive effect of a large number of indirect or low-level episodes, they may need to spell out more explicitly what they say makes it a course of conduct of the necessary quasi-criminal quality”.
Importantly, the Court held that, even if the Claimant had substantiated her allegations, her claim would have failed in any event. The Court held that it lacked the jurisdiction to consider the claim.
So, what happens when a claim in tort, such as harassment, is brought which involves individuals in different countries? The starting point in such circumstances is that the claim must be brought in the courts of the defendant’s country of domicile. There is a limited exception to this default position. If the relevant ‘harmful event’ occurred within the territory of a foreign court, that court may have jurisdiction.
In these proceedings, the Court held that the Claimant had not sufficiently established that the ‘harmful event’ happened in England. Accordingly, the claim fell at the first hurdle: albeit three years after the claim was issued and no doubt after significant expense had been incurred. Juan Carlos was never required to enter a substantive defence to the allegations.
Whether you are bringing a claim against the former King of Spain, a business partner who lives abroad or an overseas supplier, you will first need to consider which country’s laws govern the dispute and which country’s courts have jurisdiction to try any potential claim. Failure to do so may lead to future proceedings being thrown out at the first hurdle: a costly and time-consuming mistake to make.
Contractual cross-border issues
What about contractual disputes that cross borders? In broad terms, parties to a contract are free to nominate which country’s laws will govern their agreement (and which country’s courts will have jurisdiction to determine any subsequent proceedings) at the outset of their relationship. As a sign of the quality of our own legal sector, many international businesses opt to contract in accordance with the laws of England and Wales.
Governing law and jurisdiction provisions require careful consideration and drafting. If you are commencing a cross-border business relationship, our expert team of commercial lawyers are able to assist in drafting agreements to govern these relationships.
If you find yourself in a cross-border dispute and require advice, our Commercial Litigation team will be able to determine which country’s laws govern the dispute and whether the Courts of England and Wales are able to determine any future proceedings.
Our team of commercial litigators also have significant experience in obtaining injunctive relief to prevent the harassment of individuals, organisations and businesses and securing compensatory damages. If you find yourself in a situation where you are being harassed, please do get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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