UK: Forum shopping in defamation actions – on the increase?

The trend for litigants to "forum shop" - actively selecting the jurisdiction in which to raise their legal action - seems to be on the increase. This is particularly so in defamation actions, because in our increasingly technological world the dastardly untruths are often "published" (repeated or reprinted or broadcast) in more than one country.

The flamboyant boxing promoter, Don King's recent litigation in the English Court of Appeal (King v Lewis) is a fine example of this. Although both parties were resident in the US, Mr King was still able to pursue an action against Lennox Lewis in England, claiming that the boxer's attorney had represented Mr King as an anti-Semite in articles published in two US based websites. The approach (established in the Gutnick case) was based on the premise that each time the information is downloaded, or read, it constitutes a fresh publication in that jurisdiction. This means that in cases of internet defamation, parties have almost unlimited choices of where to issue proceedings.

The trend for litigants to "forum shop" - actively selecting the jurisdiction in which to raise their legal action - seems to be on the increase. This is particularly so in defamation actions, because in our increasingly technological world the dastardly untruths are often "published" (repeated or reprinted or broadcast) in more than one country.

The flamboyant boxing promoter, Don King’s recent litigation in the English Court of Appeal (King v Lewis) is a fine example of this. Although both parties were resident in the US, Mr King was still able to pursue an action against Lennox Lewis in England, claiming that the boxer’s attorney had represented Mr King as an anti-Semite in articles published in two US based websites. The approach (established in the Gutnick case) was based on the premise that each time the information is downloaded, or read, it constitutes a fresh publication in that jurisdiction. This means that in cases of internet defamation, parties have almost unlimited choices of where to issue proceedings.

Don King is not the only litigant to have chosen England & Wales recently as a forum of choice. In Jameel v Dow Jones & Co. Inc, an article published in the Wall Street Journal (in hard copy) and on-line was the focus of litigation in England. The article relayed allegations that the plaintiff had Al Qaeda connections, and although only five people in England & Wales were identified as having read the article, the English Court of Appeal held in February of this year that they had jurisdiction to hear the claim, explaining that the extent of publication could be dealt with by way of damages (although perhaps it might be more appropriate to limit such a statement to the facts and circumstances, as the impact and therefore damage resulting from publication to five people may be wholly different depending on the type of defamatory allegation, and the identities of those people). Bogdan Maris, a Romanian who sued under a false name also tried to conduct proceedings in England despite being a non-resident.His case was ultimately thrown out when his true identity was revealed, two months before trial. Bogdan Maris sued the News of the World under an alias "Alin Turca" in relation to allegations made by the paper that he was involved in the Victoria Beckham kidnap plot in 2002. Much of the news coverage of this case related to discussion of his character, and the instruction of solicitors on a "no win no fee" basis. Even more recently, a Saudi billionaire (Sheikh Khalid bin Mahfouz) was awarded £30 000 by the High Court in England in mid May in relation to the publication of 23 copies of an American book, imported to Britain.

What is so attractive about suing in England & Wales?

The main advantages to parties issuing proceedings in England & Wales relate to the costs rules, financial, the rules on the onus of proof and the presumption of damage to the claimant. Awards in England are traditionally high, and English claimants do not have to contend with anything as severe as the strongly defended constitutional right to freedom of speech that stops so many US actions in their tracks. Jameel confirmed that the presumption of damage is not incompatible to the European equivalent, the right to freedom of expression (Article 10 of The European Convention on Human Rights). In addition, in England the onus is on the defendant to prove that the damning allegations are true, and you do not need to prove malicious intent to succeed as a claimant. All a claimant need do in England to establish jurisdiction is to prove that he has a reputation within that country, which could be damaged by a defamatory allegation.

It would seem therefore that England is an obvious choice. However, in Jameel, the claimant was ultimately unsuccessful, because that the action was considered disproportionate, and it was struck out as a waste of the court’s resources. This may reduce the trend for forum shopping in the UK, but the recent interim decision of Kennedy v John Aldington and others in the Scottish Court of Session suggests a new twist.

In Kennedy, the defamatory allegation centred on a letter written in "The Automobile" magazine, commenting on the authenticity of a motor car, advertised for sale by the pursuer (the claimant). The only connection with Scotland was that the pursuer had "substantial" Scottish connections, in that his father was born here, and that he was married to his first wife in Scotland. He had relatives and friends (who were car enthusiasts) in Scotland. There was "publication" of the magazine in Scotland, but all of the parties were domiciled in England. It was not contested that England was the obvious first choice. Why then, sue in Scotland?

The reason was the extended time period in which an action can be raised in Scotland – 3 years as opposed to 1 year in England. It was not denied by the pursuer that this was the reason for raising the action in Scotland, as the matter was time barred in England. The defenders (defendants) argued that this was an inappropriate reason for litigating in Scottish courts, and detailed debate was heard on the issue of "forum non conveniens" (this court is not the appropriate forum, and does not have jurisdiction). The pursuer won that argument, and the court explained in its decision in mid May "On any view of the authorities…a pursuer has a Scottish claim when a wrong is done to him in Scotland…..since it is known that the whole damages cannot now be awarded in England and since the Scottish court has concurrent jurisdiction, it is not clearly in the interests of justice of the parties if the Scottish court which is the choice of the litigant does not continue with, and determine the action brought before it."

Does this mean therefore that Scotland may become the forum of choice? Certainly, the Scottish legal position in this area has all of the advantages of the English system detailed above. Added to that, Scottish litigation is generally less expensive and dealt with more quickly. Why is there no rush to sue in Scotland?

The answer may lie in the Scottish approach to the question of damages. In Kennedy, the court makes reference in a similar way as Jameel to considerations of whether the case is too speculative to be allowed to go to trial and it is thought that a similar approach to Jameel would be taken north of the border. In addition, damage awards in Scotland are generally lower than in England, and in Kennedy the court confirmed that the extent of damages would be confined to a measure of the damages sustained in Scotland. There is no punitive aspect to an award in Scotland, although account will be taken of "solatium" (hurt feelings), when assessing the damage to a reputation.

However, there have been hints in recent years that Scottish and English award levels are converging. The final decision and award level in Kennedy is eagerly awaited, and this may give an indication of whether the Scottish courts are becoming increasingly sympathetic to litigants, particularly with the more direct incorporation of The European Convention on Human Rights (a result of The Scotland Act 1998). If it is, we may well see more and more actions in Scotland, as the forum of choice.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 01/06/2005.