Lewis & Ors v King

Permission to serve an Internet libel claim outside the jurisdiction depends on whether England is clearly the appropriate forum. The place of publication is the starting point, but its weight decreases where the claimant’s connection with England is tenuous or substantial publication occurred abroad.

Internet publication creates no special rule based on whether England was targeted. A publisher using a globally accessible medium targets every jurisdiction in which the material may be downloaded. The resulting forum assessment is open-textured and fact-sensitive. It is primarily entrusted to the first-instance judge, whose discretionary decision should rarely be disturbed on appeal.

The claimant, an American boxing promoter with a substantial reputation in England, alleged that defamatory statements describing him as an anti-semite had been published on two California-based websites and downloaded in England. Master Whittaker permitted service of the claim form on the defendants outside the jurisdiction. Eady J refused to set that order aside.

By the appeal hearing, the claimant had discontinued against two defendants, leaving the New York lawyer who authored or made the statements as the sole defendant. He argued that New York was the proper forum and that the judge had impermissibly relied on the juridical advantage afforded by English defamation law.

The central issue was whether Eady J had made an error of law when determining that England was clearly the appropriate forum.

1. Appeal dismissed. Eady J had taken the required overall view of the appropriate forum and had made no error of law. The Court of Appeal therefore had no basis for exercising the forum discretion afresh.
2. The decision between competing forums is primarily a discretionary matter for the first-instance judge. Appellate interference should be rare. On an application for permission to serve outside the jurisdiction, the claimant must establish that England is clearly the appropriate forum.
3. The place where the tort occurred is the starting point and will usually indicate the natural forum. In defamation proceedings founded on English publication, that place is England. It is not conclusive. Its weight diminishes as the claimant’s connection with England becomes more tenuous or the significance of publication elsewhere increases.
4. Internet defamation creates no separate legal rule. The court must consider the global picture while applying the ordinary principles governing publication and forum. The ubiquity deliberately obtained by Internet publication makes the discretionary assessment more open-textured, but every case remains dependent on its circumstances.
5. The proposed inquiry into whether the publisher had targeted England was rejected. Material placed on a globally accessible website is directed towards every jurisdiction in which it can be downloaded. A subjective targeting inquiry would also introduce manipulation and uncertainty.
6. Juridical advantage is not part of the initial objective identification of the appropriate forum. It becomes relevant only if another forum is otherwise clearly more appropriate and the court must decide whether substantial justice nevertheless requires an English trial. Eady J had not departed from that approach. His remarks that an equivalent New York action would not survive merely recognised an irony in the defendant’s evidence; they did not supply the basis of his decision.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 1329, dismissed the appeal and upheld the refusal to set aside permission for service outside the jurisdiction.
2. High Court, Queen’s Bench Division: Eady J declined on 12 February 2004 to set aside Master Whittaker’s order.
3. Queen’s Bench Master: Master Whittaker granted permission on 2 October 2003 to serve the libel claim form outside the jurisdiction.