King v Lewis & Others (CA)

Reference: [2004] EWCA Civ 1329; [2005] EMLR 45; The Independent, 11 November 2004

Court: Court of Appeal

Judge: Lord Woolf CJ, Mummery & Laws LJJ

Date of judgment: 19 Oct 2004

Summary: Libel - Internet - Publication - Jurisdiction - Whether England was the correct forum - CPR - Leave to Serve Claim Form out of jurisdiction

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Appearances: Desmond Browne QC - Leading Counsel (Claimant)  Justin Rushbrooke QC (Defendant) 

Instructing Solicitors: Morgan Lewis & Bockius for the Claimant; Forbes Anderson for the Defendants

Facts

Don King was involved in litigation in the USA with Lennox Lewis and the second Defendant, a Nevada-based promotion company. This was Don King’s libel claim for publications on the internet by the third Defendant, the lawyer representing Lewis in the American litigation. All of the parties were based in the USA. King brought proceedings in the UK and was granted permission to serve out of the jurisdiction. The Defendants applied to set-aside the permission to serve out. Eady J refused the application and the Defendants appealed.

Issue

(1) Whether Eady J had made an error of law in the exercise of his discretion; (2) Whether the international dimension of publications on the Internet required any adjustment of the Spiliada principles.

Held

Appeal dismissed. (1) The Defendants could show no error in approach by Eady J. (2) Four principles could be extracted from the relevant case law (a) there is an initial presumption that the natural or appropriate forum for the trial is the place where the tort is committed; in defamation that would be where the libel was published; (b) however, the more tenuous the Claimant’s connection with this jurisdiction the weaker this consideration becomes; (c) in Internet cases the court’s discretion will be more “open-textured” so as to give effect to the publisher’s choice of a global medium; and (d) the judge must consider what is the appropriate forum without any consideration of whether there is a “juridical advantage”. The Defendant’s intention (and any alleged “targeting” of the publication) were irrelevant. Internet publications by their nature “targeted” a global audience.

Comment

This appeal was disposed of on the narrow ground that Eady J had not erred in the exercise of his discretion. The Court emphasised again that the application of the Spiliada principles was a matter for the judge and that appeals should be discouraged unless a clear error of law could be shown. Whilst strictly obiter, the balance of the judgment provides a careful analysis of the application of the Spiliada principles in the context of Internet defamation claims. The Court endorsed the orthodox approach shown in the High Court of Australia’s decision in Gutnick v Dow Jones. Internet publications fell to be considered against fundamental principles of defamation law. Publication took place where the material was read or downloaded. Where the Claimant had a reputation to protect in the jurisdiction, there was no bar to his suing in England & Wales, which would be recognised as the natural forum for the dispute.