The Court of Appeal has clarified how section 9 of the Defamation Act 2013 should be interpreted, finding that the requirement it introduced for the court to be satisfied that England is the most appropriate place to hear a libel dispute is merely a modification of the usual regime which applies where a claimant needs permission to serve outside of the jurisdiction (or where a defendant who is served in England challenges the court's jurisdiction). It follows that the usual rules as to burden and standard of proof for such applications also apply. The decision also gives helpful guidance on when evidence of foreign law will be needed and how this can be provided: Soriano v Forensic News LLC [2021] EWCA Civ 1952.
Section 9 was introduced to counter so-called "libel tourism" - libel claims brought in England which have little connection with the jurisdiction. Under section 9, a claim against a foreign defendant can only proceed where the court is satisfied that England is, of all the places in which the statement complained of has been published, clearly the most appropriate place in which to bring the action.
There have only been a handful of cases so far on section 9, so this decision provides useful clarification of a number of important points. It is significant in rejecting an interpretation which would have put onerous obligations on a claimant, although claimants based abroad and those with a global reputation still face a potentially difficult and expensive task in persuading the court that England is clearly the appropriate place for the case to be heard
Background
The claimant is a businessman who moved to the UK in 2003 and is a British citizen. He also has Israeli nationality. The defendants are a Californian corporation and four individuals domiciled in the US. The corporation owns and runs an investigative journalism publication, Forensic News, which operates via a website, Twitter, Facebook and podcasts. Three of the four individual defendants were journalists and contributors to it.
In 2019 and 2020 a number of publications appeared on Forensic News outlets, making very serious allegations against the claimant, including in respect of alleged activities in Israel and Russia. The claimant began proceedings in England alleging libel, misuse of private information, breach of data protection laws, malicious falsehood and harassment. This post deals only with the libel claims, which were confined to tortious conduct causing damage in this jurisdiction.
In order to obtain permission to serve outside of the jurisdiction a claimant must generally establish that: the claim falls within a jurisdictional "gateway" in the CPR; there is a real as opposed to fanciful prospect of success; and England and Wales is the proper place in which to bring the action - the "forum conveniens". In libel cases, if the defendant is not UK-domiciled, section 9 of the Defamation Act 2013 provides that the court has to be satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action.
Section 9 was enacted because of concerns that the jurisdiction rules were overly favourable to claimants and that this was leading to so called libel tourism; in other words claims brought by and against foreigners with relatively slender connections to the jurisdiction. This was because a claimant bringing proceedings in England would generally be able to establish that England was the most appropriate place for the proceedings (if proceedings were restricted to publication here) on the basis that the place where a tort is committed is the natural forum for the trial. This was so even where both the claimant and defendant were domiciled abroad, the claimant's reputation was centred elsewhere and publication mainly took place abroad.
Permission to serve the present claims outside the jurisdiction was granted after (unusually) a contested inter partes hearing, but the defendants were granted leave to appeal to the Court of Appeal.
Decision
The Court of Appeal dismissed the appeal, Lord Justice Warby giving the decision of the court. The court held that section 9 was a modification of the usual forum conveniens test, not a change in the court's subject matter jurisdiction. As in forum disputes generally, therefore, the burden of proof in establishing a competing jurisdiction was on the defendant and the standard of proof in doing so was a good arguable case. So far as evidence was concerned, there were no rigid rules and expert evidence would not always be necessary, although it was on the facts of this case.
Juridical nature of section 9
The issue was whether section 9 should be treated as a modification, in the context of defamation, of the classic forum conveniens test or whether it was (as the judge at first instance had held) a more far-reaching change in the law which circumscribed the court's subject-matter jurisdiction over defamation claims against non-domiciled defendants.
The court held, disagreeing with the judge, that the most natural conclusion was that the statutory draftsman had taken the classic forum conveniens test as a starting point and introduced modifications to alter the balance, by removing or watering down the presumption that England and Wales is the natural forum for a claim in respect of publication here. The modifications are important and mean claimants who are better known outside the jurisdiction or have global reputations are likely to find it hard to show that this is "clearly the most appropriate" jurisdiction in which to sue for international libel. It didn't follow from that, however, that the provisions should be treated as creating an entirely novel and revolutionary regime.
Burden of proof
The question was whether a defendant contesting jurisdiction under section 9 bore, as in a conventional forum conveniens dispute (and as the judge held), the burden of identifying a competing jurisdiction and establishing any facts relied on in support of the proposition that it was at least as suitable as England and Wales, or whether the position was different and the claimant bore the entire legal and evidential burden.
The court held that, as section 9 is a modification of the well-established forum conveniens regime, unless there was an indication that parliament intended something different (which there was not), it followed that the burden of proof should be on the defendant to establish that there was a suitable competing jurisdiction. In fact the argument that the burden fell on the defendant might be stronger in cases of worldwide publication, as a claimant may have no way of discovering the reach and extent of online publication, whereas the defendant publisher is very likely to have the details to hand.
Standard of proof
The court had to consider whether the usual standard of good arguable case applied, or (as the judge considered) the test was balance of probabilities. The court took the view that the standard of proof was good arguable case, given that it had determined that section 9 should not be treated as a fresh stand-alone provision - though this part of the judgment is obiter as the court took the view that whichever test applied would have been satisfied.
Nature of the evidence required
This gave rise to two issues. Firstly, was the claimant obliged to give full details of his business interests here and elsewhere? Secondly, to what extent was evidence about foreign law and the availability of an appropriate alternative forum required as part of a section 9 comparison?
The court held there was no rigid rule. Whether the evidence was sufficient to satisfy section 9 would depend on all the circumstances of the case. It was not the case that an application should fail unless the claimant provided full details of his business interests here and overseas, as suggested by the defendants.
So far as expert evidence was concerned, there was no single answer to whether either party to a dispute under section 9 needed to adduce expert evidence about the law of a foreign jurisdiction. There may be many cases in which that was at least desirable and some in which it is essential. But there may be cases in which the law can be proved by other evidence or by inference or the presumption of similarity (see the Supreme Court decision in Brownlie considered in our post here).
In addition, in some cases the court may be able to conduct the section 9 comparison without resort to questions of foreign law. For example, if an impecunious defendant is able to adduce evidence that the claimant is a wealthy foreign individual who is famous at home but practically unknown here, this might in itself be enough to satisfy the defendant's evidential burden. In contrast, a claimant may be able to argue that England is the most appropriate jurisdiction in which to bring a claim because this is where they live, where their reputation is centred and therefore where they suffer all or most of the harm, without any need for evidence of foreign law.
Conclusion
On the facts of this case, there was no good reason to disturb the judge's decision to allow service out of the jurisdiction. The claimant was not an international businessman. The defendants published in England seriously defamatory allegations on a substantial scale about a British citizen who was domiciled and resident here and whose reputation was centred here, not in Israel or elsewhere. The only real candidate alternative jurisdiction was the US, where the claimant had no significant reputation.
There was no large scale foreign publication that dwarfed publication in England. Expert evidence was not essential as a matter of principle, but once the defendants identified California as an alternative jurisdiction available to the claimant, they bore an evidential burden. The judge was entitled to place weight on their failure to address (by expert evidence or any other form of evidence) the question of whether the claimant could obtain vindication by means of an action in California (where he had little reputation) in respect of publication in England, where his reputation was centred.
Originally published 6 January, 2022
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