Chadha & Osicom Technologies Inc v Dow Jones & Co Inc

In an Order 11 defamation claim, significant publication within England establishes an English tort, but it does not create an automatic entitlement to an English trial. The court applies the Spiliada Maritime Corporation v Cansulex Ltd principle: the claimant must show that England is clearly or sufficiently the appropriate forum for the interests of all parties and the ends of justice. Relevant considerations include the scale of publication, the claimant’s connections with England and reputation requiring protection there, the defendant’s connections, and the practical and juridical advantages of trial in each forum. Where both parties are foreign and the claimant’s English reputation and damage are weak or imprecise, service out may properly be set aside.

The appellants, a United States resident and a United States company, alleged that an article in Barron’s Magazine was seriously defamatory. The magazine was principally circulated in the United States, although 1,257 copies were taken up in the United Kingdom.

The appellants obtained leave to serve proceedings out of the jurisdiction. Popplewell J set aside the Master’s order, holding that the dispute was overwhelmingly more appropriate for trial in the United States. The appeal alleged that he had treated the publication as a single global tort and had failed to recognise a presumption favouring an English trial once publication within England was established. The central issue was the proper application of the forum conveniens principles to an English defamation claim against foreign parties.

1. Appeal dismissed. Popplewell J had not misdirected himself and was entitled to set aside service out of the jurisdiction.
2. The governing principle remained that stated in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460: the court must identify the jurisdiction in which the case may be tried most suitably for the interests of all parties and the ends of justice. In an Order 11 case the claimant bears the burden of showing that English jurisdiction clearly satisfies that test.
3. A significant publication of prima facie defamatory material within England constitutes an English tort. Where the defendant is abroad, however, leave to serve out remains necessary and the Spiliada test applies. A substantial complaint requires consideration of the scale of publication and the claimant’s connections with, and reputation requiring protection in, England, balanced against the inconvenience to the foreign defendant.
4. The court agreed with the approach in Berezovsky & Glouchkov v Forbes Inc, including that publications in different countries may be separately actionable. That decision did not establish a global-tort approach or an irrebuttable presumption in favour of England. Its facts were materially different because the claimants had much stronger English connections.
5. There was nothing objectionable in Popplewell J’s conclusion that, where both claimants and defendant were outside England, no presumption favoured the claimants. He considered publication, the parties’ status and connections, the nature of the publication, the alleged meanings, and the comparative juridical and practical advantages of the two forums.
6. The evidence of an English reputation and English damage was vague and imprecise. The conclusion that trial in the United States was appropriate was therefore a permissible exercise of discretion. The appeal was dismissed with costs.

• High Court of Justice: Popplewell J set aside the Master’s order granting leave to issue and serve the writ out of the jurisdiction, holding that trial in the United States was overwhelmingly more appropriate.
• Court of Appeal (Civil Division): The appeal was dismissed and the order below upheld.