Berezovsky v Michaels (Glouchkov v Michaels, Berezovsky v Forbes Inc, Glouchkov v Forbes Inc)

In a transnational libel claim, a claimant seeking service out must show that England is clearly the forum in which the case may most suitably be tried in the interests of the parties and the ends of justice. The place where the substance of the tort occurred is a weighty, prima facie indicator of the natural forum, but it does not displace the overall Spiliada assessment.

English law treats each publication as a separate tort. A court should not recast that rule by treating worldwide publication as one global cause of action. Where the English publication is substantial and the claimant has a reputation to protect here, England may be the appropriate forum despite foreign events and wider overseas circulation.

Two Russian businessmen sued the American publisher and editor of Forbes in England for libel. Their claims were confined to damage caused by publication of the magazine within England and Wales. The article concerned their activities in Russia, but it was distributed to business readers in England and was also accessible online.

Popplewell J stayed the actions after concluding that the claimants’ connections with England were tenuous and that Russia was the more appropriate forum. The Court of Appeal admitted further evidence about the claimants’ English reputations, allowed both appeals, and held that England was the appropriate forum: [1999] E.M.L.R. 278.

The House considered the admission of fresh evidence, petitions to adduce further evidence, the claimants’ English connections and reputations, the correct application of the Spiliada forum test, appellate intervention in a discretionary decision, and whether the two claims should be treated differently.

1. By a majority of three to two, the House dismissed Forbes’s appeals. Lord Steyn gave the leading reasoning. Lord Nolan agreed with it, and Lord Hobhouse agreed that the appeals should be dismissed for Lord Steyn’s reasons.

2. Per Lord Steyn, the governing question under Rules of the Supreme Court, Ord 11, r 4 was whether England was clearly the most appropriate forum in the interests of all parties and the ends of justice. The established principle that the forum where the tort was committed is prima facie the natural forum was compatible with Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460. It was a weighty consideration, not a rule excluding assessment of all circumstances.

3. The House rejected the proposed global-cause-of-action approach. Each communication of a libel remains a separate tort. A claimant who sues on English publication must confine the claim to English damage and cannot include publication elsewhere. The wider overseas publication was relevant to the forum assessment, but did not remove the separate English tort or require England to be treated as an international libel tribunal.

4. On the evidence accepted by the majority, both claimants had significant English connections and reputations to protect. The English distribution was substantial. Russia was not realistically an appropriate forum because a Russian judgment would not be seen as redressing injury to their English reputations; the claimants had only minimal connections and no reputation needing protection in the United States. England was therefore the appropriate forum.

5. The Court of Appeal was entitled to intervene because Popplewell J had misdirected himself about the significant English dimension of the case. The Court of Appeal also acted within its broader discretion in admitting evidence that amplified existing material; the Ladd v Marshall [1954] 1 WLR 1489 criteria did not govern that appeal. Forbes’s late petition to adduce further evidence in the House was refused, and the claimants’ counter-petition consequently fell away.

6. Lord Hope and Lord Hoffmann dissented. They considered that the first-instance judge had been entitled to weigh the connections with England as tenuous and that the Court of Appeal had impermissibly substituted its own discretionary assessment.

• House of Lords: Forbes’s appeals were dismissed by a three-to-two majority: [2000] 1 WLR 1004.

• Court of Appeal: Allowed both claimants’ appeals, admitted further evidence, and held that England was the appropriate forum: [1999] E.M.L.R. 278.

• High Court (Popplewell J): Stayed the libel actions and required Forbes to submit to the Russian courts and abide by their judgment.