Court Of Appeal Gives Guidance On Jurisdiction Rules In Libel Claims

• Published date: 18 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Herbert Smith Freehills
• Author: Mr Neil Blake, Anna Pertoldi and Maura McIntosh

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...