The appropriate forum
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26 September 2013
David Hooper says recent rulings signal to foreign litigants that they should confine their libel battles their home turf. David Hooper is a partner at Biddle.
Two recent decisions, one by Mr Justice Popplewell in Berezovsky & Glouchkov v Forbes Inc (22 October 1997), the other by Mr Justice Morland in Wyatt v Forbes Inc (2 December 1997), have struck a blow against overseas-based plaintiffs who seek to sue for libel foreign publications with very limited circulation in the UK.
The two Russians, Berezovsky and Glouchkov, are international businessmen, one a billionaire and then deputy secretary of the Russian Security Council, and the other the deputy general manager of the state airline, Aeroflot. Wyatt is a wealthy oil man from the US. All three visited the UK regularly but lived abroad.
Nearly 99 per cent of Forbes' circulation is in the US and Canada with fewer than 2,000 copies circulating in the UK. The Forbes articles 'Is he the Godfather of the Kremlin?' and 'Sadam's pal Oscar' were defamatory in nature but had no English content.
The cases involve a detailed consideration of the application of the principles on libel actions laid down by Lord Goff in Spiliada v Cansulex (1987). Publication in the UK constitutes the commission of a tort and, prima facie, that renders this country the natural forum for the determination of the dispute (The Albuforth (1984)).
Where a plaintiff sues as of right, the burden is on the defendant to persuade the court that there is 'a clearly and distinctly more appropriate jurisdiction than the English forum'.
The burden then shifts to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England. The burden is reversed when service is under order 11 RSC. The court should be 'exceedingly careful before putting a foreigner to the expense and inconvenience of being brought to this country' (Societe Generale de Paris v Dreyfus Brothers (1885)).
The plaintiff has to prove that England is 'clearly the most appropriate forum' for the trial. The fundamental principle is: where can the case be tried 'suitably for the interests of all the parties and for the ends of justice?' Determining factors will include the convenience, the expense, the availability of witnesses, the subject matter of the dispute and where the parties reside. If there is already litigation abroad, that will militate against the case being heard in England (Oraro v Observer (10 April 1992), in which The Observer newspaper succeeded in having a case brought by a leading Kenyan lawyer transferred to Kenya).
Foreign nationals are unlikely to receive sympathy when they complain that the courts of their own countries would perpetrate injustice (Jeyaretnam v Mahmood (21 May 1992)).
In Wyatt's case this was also a factor because his company, Coastal Corporation, was already litigating in the US state of Texas the issue of an arson attack at its headquarters in Houston. If there is no significant connection with this country, leave to serve out of the jurisdiction is likely to be refused (Kroch v Russell (1937)).
Plaintiffs who live in this country have a much better prospect of persuading a court to hear their claim against foreign publications (Bachchan v AB Dagens Nyheten (24 May 1990), a case involving 200 UK copies of a Swedish newspaper with a circulation of 400,000; and Schapira v Haaretz (20 March 1997), involving 141 UK copies of an Israeli newspaper with a circulation of 58,900).
Bachchan's success proved pyrrhic because the US courts refused to enforce an English judgment.
The decisions in the Forbes cases struck a real blow against forum shoppers. Whether the case is based on forum non conveniens or opposition to service out of the jurisdiction under Order 11, the court will be determining whether there is some other tribunal having competent jurisdiction where it is more suitable in the interests of all the parties and for the ends of justice for the case to be tried (Sim v Robinow (1892)).
In the Forbes cases the courts recognised that justice may not be achieved where all the witnesses and documents are abroad and may not be compellable by the English courts.
The mere fact that Wyatt would lose the benefits of the burden of proof being on the defendants in this country to prove what was written was true and of avoiding the Sullivan public figure defence in the US was not sufficient to prevent his case being heard in the country with which it had the closest affinity, the US. As it was, his attempt to bring the case in England was dismissed with costs.
Cases where the Brussels Convention apply will enable a degree of forum shopping as in Shevill v Press Alliance (1992), where an action could be brought in respect of the 230 copies (out of a total 200,000) of France Soir circulated in the UK. In all other cases the normal conflict of laws rules apply.
But the Forbes cases means that the increasing number of American and Russian forum shoppers will now be compelled to litigate their libel action in the countries where they rightly belong.