Rulings 'foreshadow' clampdown on libel tourism in imminent defamation law reforms, say experts

Out-Law News | 16 Oct 2013 | 2:54 pm | 3 min. read

The High Court's refusals to hear the outcome of two defamation claims serve as a pre-cursor to stiffer rules on libel tourism, two experts have said.

In separate judgments issued earlier this week, two High Court judges refused applications to hear two defamation cases brought, one by a Russian and the other by a Serbian. The judges ruled that both men had failed to show sufficient links with the UK to merit their cases being heard. 

"The decisions foreshadow what is likely to be a much stricter approach to international libel claimants bringing claims in this jurisdiction in circumstances where very often the alleged libel principally took place outside England and the claimant concerned had no real or only the most tenuous links to this country," litigation expert Jim Richards of Pinsent Masons, the law firm behind Out-Law.com, said. 

Ryan Whelan of Pinsent Masons, who writes about defamation law, added: "For those claimants who engage in forum shopping, it is now clear that London will be a somewhat less attractive destination as a result of these landmark rulings." 

In the first case former senior Russian policeman Pavel Karpov claimed that he had been defamed by investment fund manager Bill Browder in videos posted online, and by comments made by Browder in the media, which linked Karpov to the kidnapping, torture and death of Russian tax lawyer Sergei Magnitsky. 

The second case related to the alleged defamation of Serbian man Stanko Subotic in articles published in Balkan newspapers which were accessible in both paper form and online within England and Wales. Subotic claimed that the media campaign was driven by Montenegrin Ratko Knezevic and sought to hold him liable for defamation.  The articles falsely linked Subotic to "murder, drug smuggling, witness intimidation, fraud, organised crime and concealing his identity by plastic surgery", he argued, according to the judgment. 

The two High Court judges reached similar conclusions when rejecting to determine the outcome of the cases. 

Lawyers acting on behalf of Karpov claimed that "there is no reason in logic or fairness why someone who is not generally known within the jurisdiction prior to publication cannot be seriously damaged where the offending publication both creates and destroys his reputation". 

However, lawyers acting for Browder argued that "there was no authority" permitting foreign claimants, with "no significant connection ... and no established reputation to protect" within England and Wales to "rely on the publication about which he complained in order to establish such a connection and reputation". 

In the Browder case, Mr Justice Simon ruled that Karpov had not established a "necessary link or 'imminent connection' with the jurisdiction" to merit his case being determined before the courts. 

"[Karpov] cannot establish a reputation within this jurisdiction sufficient to establish a real and substantial tort," the judge ruled. "His connection with this country is exiguous and, although he can point to the continuing publication in this country, there is 'a degree of artificiality' about his seeking to protect his reputation in this country." 

Mr Justice Simon relied on a number of other factors to determine that Karpov's application to have his case heard before the High Court "should be struck out as abuse of the process and/or under the inherent jurisdiction". This included the fact that Karpov tried to have the case determined before the High Court in a bid to "vindicate his reputation in the Russian Federation". Russian courts "was the natural forum for such a claim", he ruled. 

"The connection with this country is limited to the presence of some of the parties and it being the place where some of the defamatory material was, and continues to be, published," he said. 

Mr Justice Dingemans reached a similar conclusion in the case involving Subotic and Knezevic. 

"The evidence shows that there was no substantial publication in England and Wales, and that there was no effect on the reputation of Mr Subotic in England and Wales," the judge said. 

Jim Richards of Pinsent Masons said that provisions written into the new Defamation Act, which was passed by Parliament earlier this year but has still to come into force, will further restrict the ability of foreign claimants to bring libel claims before English and Welsh courts. 

According to section 9 of the new Defamation Act, courts in England and Wales do not have the jurisdiction to hear and determine the outcome of defamation cases brought before them by people domiciled outside of the UK, EU or Iceland, Switzerland and Norway " 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".