Soriano v Forensic News LLC & Ors

Permission to serve proceedings out of the jurisdiction requires satisfaction of the applicable jurisdictional gateway, a good arguable case on the merits, and the relevant forum and discretionary tests.

Under section 9 of the Defamation Act 2013, the court must conduct a fact-sensitive, multifactorial assessment of whether England and Wales is clearly the most appropriate place to bring the claim. The claimant’s centre of interests is relevant but is not the statutory test. The existence of related proceedings in England may decisively favour a single jurisdiction where there are common issues and parallel proceedings would be inefficient.

For misuse of private information, distress or alarm must be linked to the defendant’s publication, and a reasonable expectation of privacy may be lost after public circulation of the material.

The claimant sought permission to serve proceedings in defamation and misuse of private information on the sixth defendant, a Washington resident, in respect of articles and photographs published on an internet blog.

The application followed an earlier decision granting permission in part against the first to fifth defendants and adjourning the application concerning the sixth defendant. The sixth defendant also sought relief from sanctions and permission to rely on late evidence, including expert evidence on Washington law.

The issues were whether the jurisdictional gateways and merits thresholds were met, whether England and Wales was the appropriate forum, and whether permission should be granted in the interests of justice.

1. Relief from sanctions. The late evidence was served in serious breach of procedural rules and orders, without a good reason. Nevertheless, considering all the circumstances, including the claimant’s substantial contribution to the procedural confusion, the absence of tangible disruption to other litigants, and the relevance of the evidence, it was proportionate to grant relief. The expert evidence on Washington law was admitted with permission under CPR 35.4(1).
2. Defamation. The claimant established a good arguable case under CPR PD 6B paragraph 3.1(9)(a), since damage was arguably sustained in England and Wales. He also showed a serious issue to be tried. The pleaded meanings were capable of amounting to serious imputations, although serious harm was not inevitable and would require evidence at trial by reference to actual impact.
3. Section 9 of the Defamation Act 2013 requires a fact-sensitive assessment of all the places where the statement was published. Relevant factors included publication figures, reputational damage, target audience, available remedies, costs, fairness, language and witnesses. The centre-of-interests approach in eDate Advertising v X was not the statutory test and should not directly govern the assessment.
4. Publication was greater in the United States and the blog was principally directed to a United States and Israeli audience. Washington offered remedies capable of addressing worldwide damage and an English judgment was unlikely to be enforceable in the United States. Those factors favoured Washington. However, claims against the other defendants were already proceeding in England and Wales, with substantial overlap concerning reputation, harm and possible defences. The efficiency, expedition and economy of a single jurisdiction outweighed the factors favouring Washington. England and Wales was therefore clearly the most appropriate place, and the residual discretion favoured service out.
5. Misuse of private information. The claimant established a good arguable case that distress or alarm could result from the initial mass publication of his image, but not from the sixth defendant’s later republication of photographs already publicly available and circulating for six months. He also failed to establish a serious issue to be tried that he retained a reasonable expectation of privacy in those photographs. Permission was therefore refused for this claim.
6. The application succeeded for defamation and failed for misuse of private information. The claim against the sixth defendant was limited accordingly, reunited with the claims against the other defendants, and stayed pending the related appeal.

• High Court (Queen’s Bench Division): Jay J previously granted permission in part against the first to fifth defendants and adjourned the application concerning the sixth defendant: [2021] EWHC 56 (QB).
• High Court (Queen’s Bench Division): The present court granted permission to serve out for defamation, refused permission for misuse of private information, and stayed the claim pending the related appeal.