Berezovsky v. Michaels and Others; Glouchkov v. Michaels and Others

The House considered whether English courts were the appropriate forum for actions for libel brought by two Russian businessmen alleging injury to their reputations in England from an article published by an American magazine. The court applied the principles in Spiliada Maritime Corporation v. Cansulex Ltd. in deciding whether leave to serve out of the jurisdiction should be granted under R.S.C., Ord. 11, r.1(1)(f) and r.4(2). It rejected the «global tort» approach to transnational publications and reaffirmed that each publication may give rise to a separate tort; the place of publication is a weighty factor, but not conclusive. The Court of Appeal was held entitled to admit the plaintiffs' additional evidence and to conclude that England was the appropriate forum; petitions by the defendants to adduce further evidence before the House were refused as too late. The House dismissed the defendants' appeals by majority, leaving the Court of Appeal's decision intact.

The plaintiffs, Boris Berezovsky and Nikolai Glouchkov, Russian businessmen, sued Forbes Inc. and its editor in England for libel arising from an article in Forbes (30 December 1996) describing them in highly adverse terms. They limited damages to injury sustained within England and sought leave under R.S.C., Ord. 11 to serve out of the jurisdiction.

The procedural history was: Popplewell J. (22 October 1997) found jurisdiction existed but stayed the actions as England was not the most appropriate forum; the Court of Appeal (Hirst L.J.) admitted further evidence and allowed the plaintiffs' appeals (19 November 1998); the defendants sought leave to adduce further evidence in the House of Lords but the House refused that petition and heard the consolidated appeals (11 May 2000).

The key issues were (i) whether the Court of Appeal properly admitted new evidence, (ii) whether the House should admit late evidence from the defendants, (iii) whether the plaintiffs had sufficient connections and reputations in England to make England the appropriate forum, (iv) whether the Spiliada test had been correctly applied, (v) whether the Court of Appeal could interfere with Popplewell J.'s exercise of discretion, and (vi) whether the two plaintiffs should be treated differently.

The House held that the Court of Appeal acted within a proper appellate discretion in admitting the plaintiffs' additional evidence (it added material colour and was served with adequate time to respond). The House refused Forbes' petition to introduce further evidence to the House as it was served too late and would be prejudicial. On the merits the House majority accepted the Court of Appeal's factual findings that the plaintiffs had substantial connections with England and reputations here, that the English publications were significant and that alternative fora (Russia and the United States) were not appropriate to vindicate the plaintiffs' reputations in England. The House rejected attempts to treat a transnational publication as a single ‘‘global’’ cause of action and confirmed that each publication can be a separate tort; however, the fact that the tort was committed in England is a strong factor under Spiliada but not an absolute presumption. The House also declined to decide the separate internet publication point for lack of evidence.

Appeal dismissed. By majority the House refused the defendants' petitions to admit late evidence and upheld the Court of Appeal's decision that the actions could proceed in England because the plaintiffs had sufficient connections and an English reputation to make England the most appropriate forum under the Spiliada principles; the House rejected a global-tort approach to transnational libels and treated each publication within the jurisdiction as a separate tort.

Popplewell J. (22 October 1997) set aside leave and stayed the actions. The Court of Appeal allowed the plaintiffs' appeals and lifted the stay (reported [1999] E.M.L.R. 278; judgment 19 November 1998). The defendants appealed to the House of Lords and the appeals were heard on 11 May 2000; the House delivered its decision in [2000] UKHL 25 on 11 May 2000.