Two recent decisions – Karpov v Browder and others [2013] EWHC 3071 (QB) and Subotic v Knezevic [2013] EWHC 3011 (QB) – have dealt a blow to so-called ‘libel tourism’, that is, defamation actions in the English courts where there is only the most tenuous of links to the jurisdiction. It is well established that the Court is required to stop as an abuse of process defamation proceedings which serve no legitimate purpose (Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75). Whether the claim in question amounts to such an abuse of process comes down to whether a ‘real and substantial tort’ has been committed in the jurisdiction. In both Karpov and Subotic, the Judge held that such a tort had not been committed within England and Wales, principally because the claimants lacked a reputation within the jurisdiction that was capable of being prejudiced by the allegedly libellous material.
These decisions are perhaps indicative of an increased eagerness from judges to prevent the ‘misuse’ of the English courts in defamation proceedings, and may provide an insight into how they will apply new provisions of the Defamation Act 2013 (the “DA“) aimed at restricting libel tourists’ access to the English courts.
Karpov
The Karpov claim stemmed from the claimant’s allegation that certain videos posted on a website, as well as the content of a magazine interview, implicated him in the detention, abuse and death of the Russian anti-corruption campaigner, Sergei Magnitsky.
The defendants applied for the claim be struck out as an abuse of process under CPR 3.4(2)(b) on the basis that, firstly, the claimant had no significant connection with England or a reputation to be protected there, and could therefore not establish a ‘real and substantial tort’, as required by Jameel. Secondly, these claims had already been litigated before the Russian courts, which had rejected them; the issues should therefore not be allowed to be re-tried in England.
Having reviewed the relevant case law, Simon J set out, at paragraph 69, the following key principles:
- A foreign claimant suing for libel could have his claim struck out if the publications could not establish a ‘real and substantial tort’ within the jurisdiction.
- In deciding whether there was such a tort, it was relevant to examine whether the claimant had a reputation to be protected. This was linked to whether the claimant would achieve vindication if his claim were successful. Further, the claimant may be able to show a reputation sufficient to establish a ‘real and substantial tort’ where, although he had no prior reputation, such a reputation was both created and destroyed by the relevant publication. However, this situation would only normally arise where the claimant had some prior or imminent connection with the jurisdiction.
- The ‘real and substantial tort’ requirement was not absolute, and the proportionality of striking out a claim for abuse of process should be considered. This involved a balancing of the parties’ rights under the European Convention on Human Rights, namely the claimant’s right to protection of reputation under Article 8, against the defendant’s right to protection of freedom of expression under Article 10. In balancing these rights, the Court may conclude that the case should be allowed to proceed, notwithstanding the lack of a ‘real and substantial tort’.
- The lack of a ‘real and substantial tort’ within the jurisdiction will, in any event, be an important consideration in a strike-out application.
In applying these principles, Simon J noted, first, that, by the claimant’s own admission, “[t]he reality [was] however that [his] substantial reputation in England and Wales [had] been both created and destroyed through the Defendants’ campaign“. This was insufficient to establish a link or connection with the jurisdiction; the claimant therefore had no reputation to protect within the jurisdiction and was unable to prove a ‘real and substantial tort’. The Judge commented that the “connection with this country is exiguous” and that there was “a degree of artificiality” about him seeking to protect his reputation in England. This factor was important, but not determinative, in deciding whether to strike out the claim.
Second, the Judge considered whether the claimant was likely to achieve vindication of his reputation via his libel claim, consideration of which involved an interesting detour into the wider political implications of Sergei Magnitsky’s death. In April 2013, the United States Department of the Treasury had published a list of those individuals designated by the President as responsible for, amongst other things, the detention, death and abuse of Sergei Magnitsky or in efforts to conceal these matters (known as the ‘Magnitsky list’). The claimant’s name appeared on that list. While the claimant would obtain a certain degree of vindication from a judgment in his favour, such judgment would not assist with his primary goal, namely his removal from the Magnitsky list.
Third, the Claimant had already achieved a measure of vindication from the views that the Judge expressed in his judgment because, in relation to the defendants’ plea of the justification defence, the Judge had stated that he considered that the particulars relied upon by the defendants to justify the charge that the claimant was party to Sergei Magnitsky’s murder were inadequate.
Fourth, the Judge stressed that the fact that the claimant had already brought civil proceedings in Russia, and that these claims had been dismissed, further demonstrated that Russia was the natural forum for the proceedings.
Weighing up these factors (as well as limitation issues and the likely high costs of the claim) in the proportionality balancing exercise, the Judge concluded that the proceedings should be struck out as an abuse of process and/or under the Court’s inherent jurisdiction.
Subotic
The claimant (a Serbian national) sued the defendant (a Montenegro national) for allegedly libellous publications in Balkan language newspapers said to have hard-copy circulation in England and Wales, as well as in respect of the internet publication of those and similar articles.
Dingemans J re-visited the legal principles set out in Jameel and, as Simon J had done in Karpov, emphasised that vindication is an important element in defamation proceedings, but that this “vindication must relate to the Claimant’s reputation in this jurisdiction“.
Apparently paying more heed than Simon J to the severity of the strike-out sanction, the Judge stressed that “dismissing an action for an abuse of process is a draconian power vested in the Court which should only be exercised in an exceptional case” (referring to Haji-Ioannou v Dixon and others [2009] EWHC 178 (QB)). He also commented that “applications to dismiss proceedings for abuse of process must not become a routine, expensive, procedural hurdle over which Claimants are forced to jump in an attempt to secure justice“. On the other hand, it is, the Judge said, “essential that the Court is able to control its process to ensure that actions which do not serve any legitimate purpose are not pursued and that there is not disproportionate and unnecessary interference with freedom of expression“.
Taking into account the evidence in relation to the hard-copy and internet publications (there had been very limited circulation of the hard-copy material, and the internet ‘hits’ within England and Wales for the online material amounted to one per cent or less of total traffic), together with the fact that the claimant had not shown any damage to his ability to do business within the jurisdiction, the Judge held – borrowing a phrase from Jameel – that the claimant’s case was not “worth the candle of pursuing this litigation in England and Wales“. The claim was therefore struck out as Jameel abuse of process.
Comment
Neither Judge mentioned in his ruling the impending changes to be introduced by the DA. However, these cases may provide some insight into how the courts might interpret section 9(2) of that Act, which provides that “A court does not have jurisdiction to hear and determine an action to which this section applies [ie an action where the defendant is non-domiciled in the UK, the EU, or a state party to the Lugano Convention] unless the court is 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 in respect of the statement.” In assessing whether England and Wales is the ‘most appropriate place’, the courts may be able to draw on existing case law and, relying on a new statutory underpinning (rather than the ‘draconian’ strike-out power), we may see a greater willingness to dispense of cases that exhibit only the weakest of links with the jurisdiction.
Other jurisdictions are fighting against libel tourism. In 2010, the United States enacted the SPEECH Act, which prohibits enforcement in the United States of a foreign defamation judgment that would not withstand First Amendment scrutiny if it were decided in the U.S.
