High Court Refuses Anti-Suit Injunction To Restrain US S.1782 Discovery Application In Relation To English Libel Proceedings

• Jurisdiction: United States,Federal
• Law Firm: Herbert Smith Freehills
• Subject Matter: Litigation, Mediation & Arbitration, Libel & Defamation
• Author: Mr Neil Blake, Peter Behmke and Maura McIntosh
• Published date: 03 March 2023

A recent judgment highlights the circumstances in which the English court may, or may not, issue an anti-suit injunction to restrain an application under s.1782 of Title 28 of the US Code: Soriano v Forensic News LLC [2023] EWHC 262 (KB).

In broad terms, s.1782 allows a litigant in a non-US legal proceeding to ask a US District Court to order an individual or entity in the relevant federal district to provide testimony or documentary discovery (disclosure) for use in the foreign proceedings (see eg the article from our Cross-Border Litigation publication series "Section 1782 - A surprisingly underused tool in cross-border litigation").

The English court has a well-established jurisdiction to issue an anti-suit injunction to restrain a party pursuing a s.1782 application, where such an application would be unconscionable. However, as this decision suggests, a s.1782 application is unlikely to be considered unconscionable simply because the US court may take a broader approach than the English court faced with an application for third party disclosure.

That applies equally in the libel context. Accordingly, a defendant to a libel claim in the English court may be able to use the s.1782 procedure to obtain evidence to support an additional or improved defence, which has not to date been particularised in the action, even though the English court might take a narrower approach in ordering disclosure - though of course each case will turn on its facts.

Background

The claimant, who was domiciled in the US, brought proceedings against various US-domiciled defendants in respect of certain publications which referred to the claimant in unflattering terms. The allegations included libel, misuse of private information and breaches of data protection law. The court gave permission to serve the proceedings on the defendants outside the jurisdiction.

The first two defendants (referred to in this post as "the defendants") applied to the US District Court for the Southern District of New York under s.1782 seeking permission to issue a subpoena for the production of documents against a US subsidiary of HSBC international banking group. The US subsidiary was understood to have acted as correspondent bank to clear US dollar payments to/from the claimant's accounts with HSBC in London.

The claimant applied to the English court for an anti-suit injunction to restrain the defendants' s.1782 application on the basis that the US proceedings initiated by that application would be...