Walter Tzvi Soriano v Forensic News LLC & Ors.

An English court may restrain foreign evidence-gathering proceedings where, considering all the circumstances and the purpose of the application, the conduct is unconscionable, oppressive or vexatious, or interferes with the due process or proper conduct of English proceedings. The fact that a request is broader than English disclosure, or concerns a libel defence, does not by itself justify an injunction. Authorities limiting disclosure in libel actions do not restrict lawful evidence gathering abroad. The foreign court is primarily responsible for controlling the request’s breadth and burden. Non-payment of domestic costs may be considered, but does not itself make foreign evidence gathering unconscionable where domestic remedies exist.

The claimant brought defamation proceedings against two United States-based defendants concerning eight online publications. The defendants applied to the District Court for the Southern District of New York under 28 USC §1782 for broad banking documents relating to the claimant and his companies. The claimant sought an anti-suit injunction in England, alleging that the application was abusive, vexatious, oppressive and an interference with due process.

Murray J dismissed the application: [2023] EWHC 262 (KB). The claimant appealed on five grounds. The Court of Appeal granted permission on four grounds, refused permission on the libel tourism ground, and dismissed the appeal. The central issue was whether lawful use of a foreign evidence-gathering procedure justified intervention by the English court.

1. Disposition. Permission to appeal was granted on the abusive, costs, due process and helpful-instructions grounds, but refused on the libel tourism ground. The appeal was dismissed.
2. Applicable injunction principles. The court applied the approach in South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien” NV [1987] 1 AC 24. An injunction may restrain foreign proceedings where the conduct is unconscionable, oppressive or vexatious, or interferes with the due process or proper conduct of the English court. The evaluation is fact-sensitive, considers all the circumstances, and may include the purpose of the foreign application. An appellate court should be slow to interfere with that evaluation absent legal error.
3. Libel and foreign evidence gathering. Yorkshire Provident Life Assurance Co v Gilbert [1895] 2 QB 148 and Arnold & Butler v Bottomley [1908] 2 KB 151 concern the narrower scope of disclosure in an English libel action, particularly in support of a truth defence. They do not restrict lawful evidence gathering more generally. The same principles apply to libel and other civil proceedings. The need to prove truth does not disable a defendant from obtaining evidence lawfully abroad.
4. Role of the foreign court. The breadth of a request under 28 USC §1782 was primarily a matter for the District Court for the Southern District of New York. Intel Corp v Advanced Micro Devices, Inc (2004) 542 U.S. 241 recognised safeguards including consideration of the foreign proceedings and court, possible circumvention of foreign proof-gathering restrictions, undue burden and confidentiality. The foreign court was capable of deciding whether to make an order and its proper scope.
5. Application to this case. Bankers Trust International Plc v PT Dharmala Sakti Sejahtera [1996] CLC 252 and Omega Group Holdings Ltd v Kozeny [2002] CLC 132 were factually distinguishable. The present request’s breadth, its effect on third parties and the outstanding costs order did not make it unconscionable. Non-payment of costs gave rise to domestic remedies. The reference to libel tourism did not justify an injunction, and the court declined to provide specific instructions to the foreign court.

1. Court of Appeal (Civil Division): Granted permission on the abusive, costs, due process and helpful-instructions grounds, refused permission on the libel tourism ground, and dismissed the appeal: [2023] EWCA Civ 223.
2. High Court of Justice, King’s Bench Division: Murray J dismissed the claimant’s application for an anti-suit injunction: [2023] EWHC 262 (KB).
3. Court of Appeal (Civil Division): In an earlier jurisdiction decision, the court confirmed that England was clearly the most suitable forum for the defamation claim: [2021] EWCA Civ 1952.