Berezovsky v Forbes Inc & Michaels
Reference:  UKHL 25;  1 WLR 1004;  2 All ER 986;  EMLR 643
Court: House of Lords
Judge: Lords Steyn, Nolan, Hoffmann, Hope and Hobhouse
Date of judgment: 11 May 2000
Summary: Defamation - Jurisdiction - Choice of Forum - Forum Non Conveniens - Claimants' connection with and reputation in England and Wales - Admittance of new evidence
Desmond Browne CBE QC - Leading Counsel (Claimant)
Adrienne Page QC - Leading Counsel (Defendant)
Justin Rushbrooke QC (Claimant)
Instructing Solicitors: Peter Carter-Ruck & Partners for the Claimants; Biddle for the Defendants
Forbes Inc (‘F’) were the publishers an American magazine which published a story alleging that Berezovsky (‘B’) was heavily involved in organised crime and corruption in Russia, and that Glouchkov (‘G’) was a criminal associate of his. The issue of the magazine in which the story appeared sold 785,710 copies in the US and Canada, 1,915 in England and Wales and 13 in Russia. B and G were frequent visitors to England and B had family there. B and G sought to issue defamation proceedings against F in England for damage to their reputation there. Leave to serve outside the jurisdiction was given by the Master, set aside by the High Court, and, after admitting new evidence on B’s reputation in England and the effect of the article on business with which B was associated, reinstated by the Court of Appeal. F appealed to the House of Lords.
(1) Whether the Court of Appeal had erred in admitting the new evidence;
(2) Whether F should be allowed to introduce new evidence in the House of Lords relating to the issue of justification;
(3) Whether England and Wales was the appropriate forum for trial of the action.
Dismissing F’s appeal:
(1) The Court of Appeal had acted within its discretion.
(2) F should have produced its evidence before the Court of Appeal; it had now waited too long.
(3) (Lords Hoffman and Hope of Craighead dissenting), England and Wales was the appropriate forum for trial of the action. Contrary to F’s submissions, the publication of a trans-national libel in England was a separate tort allowing for a claim in this jurisdiction. Where leave to serve out of the jurisdiction was required, the burden was on the plaintiff to demonstrate that this was the most appropriate forum for trial of the action, although prima facie the jurisdiction in which a tort was committed would be the natural forum. On the evidence B and G had significant connections with England and Wales and reputations to protect there. Given B and G’s lack of reputation in the USA and the lack of publication in Russia, the Court of Appeal’s decision was correct and the trial of the action would proceed.
A leading – and somewhat controversial – case on forum in libel actions, demonstrating the English courts’ willingness to apply the Albaforth line of authority to libel claims and accept jurisdiction wherever it appears that there has been real damage to reputation here. Lords Hoffman and Hope dissented on the ground that the Court of Appeal should not have interfered with the decision of Popplewell J in the High Court. He had not, they said, misdirected himself in law, and the new evidence presented in the Court of Appeal would not have affected his decision. Lord Hoffman described Berezovsky and Grouchkov as forum shoppers and felt that the English courts should not indulge them. The interesting question of how forum issues are affected by the Internet was left unresolved.