Ishtiaq Baig v Zoheb Hassan: domicile and jurisdiction in defamation proceedings

The High Court has dismissed an appeal concerning jurisdictional challenges in defamation proceedings, providing important clarification on the application of the "good arguable case" test under section 9 of the Defamation Act 2013.

The appellant, Ishtiaq Baig, brought defamation proceedings against the respondent, Zoheb Hassan, a Pakistani pop star, relating to broadcast interviews on Pakistani television in August 2021. The claim was issued in August 2022. Hassan successfully applied to set aside the claim form on the basis that the court lacked jurisdiction under section 9 of the 2013 Act, as he was not domiciled in the United Kingdom at the relevant time.

The statutory framework

Section 9 requires two conditions to be met before the court can decline jurisdiction: the defendant must not be domiciled in the UK, and England and Wales must not be clearly the most appropriate place to bring the action. Domicile for these purposes is determined by sections 41 and 42 of the Civil Jurisdiction and Judgements Act 1982. An individual is domiciled in the UK if they are resident here and the nature and circumstances of that residence indicate a substantial connection with the UK.

The residence determination

The central issue on appeal was whether Master Dagnall erred in finding that Hassan was not resident in the UK on the date proceedings were issued. The appellant advanced two grounds: first, that the judge improperly relied on the absence of cross-examination of the respondent's witnesses; second, that the judge failed to properly apply the good arguable case test as reformulated in Brownlie v Four Seasons Holdings Inc.

Mrs Justice Steyn rejected both grounds. On the first ground, whilst acknowledging that jurisdictional disputes should ordinarily be determined with despatch and without oral evidence, she confirmed that the court retains a discretionary power to permit cross-examination. The judge had not placed undue weight on the absence of cross-examination but had simply recognised the limitations of the interlocutory process and noted that Hassan's coherent, uncontradicted evidence provided no proper grounds for rejection.

Application of the test

On the second ground, Mrs Justice Steyn found that the judge had correctly directed himself on the applicable legal principles. Following Soriano v Forensic News LLC, the standard of proof was a good arguable case rather than balance of probabilities. The three-limb test from Brownlie requires: a plausible evidential basis showing the claimant has the better argument; the court to overcome evidential difficulties and reach a conclusion if it reliably can; and, if unable to determine who has the better argument, application of a more flexible test based on plausibility of contested evidence.

The judge had undertaken a detailed analysis of Hassan's evidence regarding his extended stays in the UK between early 2020 and October 2022, which were primarily for medical treatment for suspected abdominal cancer. This evidence was supported by contemporaneous medical correspondence and was uncontradicted. The judge properly concluded he could reliably determine that Hassan was not resident in the UK at the relevant time.

The appeal court emphasised that it is not open to an appellant to invite re-evaluation of evidence simply because the appellate court is in the same position as the first instance judge. No misdirection or perverse evaluation had been demonstrated.

This judgement reinforces the established approach to jurisdictional challenges in defamation proceedings and confirms the primacy of the Brownlie test whilst acknowledging the practical limitations inherent in interlocutory proceedings.

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