In a judgment handed down by the Court of Appeal on 21 December 2021 (Soriano v Forensic News [2021] EWCA Civ 1952), the Court of Appeal confirmed that Section 9 of the Defamation Act 2013 ("DA 2013") contains important modifications to the forum conveniens test for defamation claims, albeit does not create a "jurisdictional bar for the claimant to overcome".
The Court of Appeal clarified that Parliament had modified the common law position on forum conveniens in libel claims by way of Section 9, which requires the Court to:
- Take into account "all the places in which the statement complained of has been published" in its assessment of which forum is "clearly the most appropriate"; and
- Consider statements that convey substantially the same imputation as if each statement were a "statement complained of".
The effect of these modifications to the forum conveniens test is to diminish the presumption that England and Wales is the natural forum for a libel claim where publication takes place in the jurisdiction, as referred to in Berezovsky v Michaels [2000] 1 WLR 1004 .
Warby LJ's findings on Section 9 DA 2013 were as follows:
Issue one: Juridical nature of Section 9
The implication of the decision at first instance was that where a defendant is served within England and Wales, it would be able to raise Section 9 as a jurisdictional bar. The Court of Appeal held that the judge at first instance had erred in this implication. Challenges to Section 9 should continue to be raised in accordance with CPR Part 11 as a personal jurisdiction provision, not a subject matter jurisdiction provision. This is contrary to the judge's findings in Al Sadik v Al Sadik [2019] EWHC 2717 (QB).
Issue two: Burden of proof
Under Section 9(2), the claimant bears the legal burden of proof. However, Warby LJ concluded that under the modified form of forum conveniens, a defendant will bear the same evidential burden to identify and establish an alternative available jurisdiction at least as suitable as England and Wales. Warby LJ's conclusion on this issue clarifies the decision in Wright v Ver [2020] EWCA Civ 672 at [60].
Issue three: Standard of proof
Under Section 9, the standard of proof a claimant must meet on an issue is a forum conveniens standard of ‘a good arguable case’ (AstraZeneca UK Ltd v Albermarle International Corp [2011] EWHC 1574 (Comm)), as opposed to 'on the balance of probabilities'.
Issue four: Nature of the evidence required
Warby LJ concluded that a Section 9 comparison could be made without presumption as to foreign law or expert evidence on the matter. The question of whether expert evidence will be required is a fact sensitive matter for the judge (see FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45).
Section 10 DA 2013
In his obiter remarks at [45] – [54], Warby LJ indicated that Section 10 (action against a person who was not the author, editor etc) is likely also a personal jurisdiction provision, in light of "the fact that the jurisdiction under s 10 turns on the role an individual played in respect of a publication" [52]. Warby LJ found that the two decisions cited (Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB), [2016] 4 WLR 69, paras 20-23, and Pirtek (UK) Ltd v Jackson [2017] EWHC 2834 (QB), paras 27-38) did not serve to support the conclusion of the judge at first instance as these were cases "where no acknowledgment of service had been filed, and the defendants were not participating". As with Section 9, challenges to Section 10 should also continue to be raised in accordance with CPR Part 11.
Conclusion
Soriano is now the definitive appellate authority on Section 9, applying to all defendants domiciled outside of the UK, including those living in member states party to the Brussels and Lugano Conventions. It provides important clarification as to the law of forum conveniens in defamation claims.
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