Walter Tzvi Soriano v Forensic News LLC & Ors.

An English court may restrain foreign evidence-gathering proceedings only where they are oppressive, vexatious, interfere with the due process of the English court, or are otherwise unconscionable. The fact that evidence could have been sought in England, or that the foreign procedure is broader or different, is insufficient. A party may legitimately seek assistance from a foreign court under 28 US Code §1782, subject to that court’s control over evidence within its jurisdiction. The English court should generally trust the foreign court to address procedural fairness, confidentiality and excessive breadth. The application remains fact-sensitive, and relief may be justified where foreign proceedings reopen a concluded trial or cause unwarranted duplication.

The claimant brought proceedings in England concerning publications by the defendants. The Court of Appeal had previously determined jurisdiction issues and permitted service in respect of libel, misuse of private information concerning four photographs, and data protection claims: [2021] EWCA Civ 1952.

The defendants subsequently applied to the United States District Court for the Southern District of New York under 28 US Code §1782 for permission to subpoena documents from HSBC Bank USA. The claimant sought an injunction under section 37(1) of the Senior Courts Act 1981, alleging that the US proceedings were oppressive, vexatious, abusive and an interference with the English proceedings. The central issue was whether the application was unconscionable.

1. Application refused. The US proceedings were not oppressive, vexatious or otherwise unconscionable, and there was no realistic prospect that they would materially interfere with the due progress or efficient case management of the English claim.
2. The jurisdiction to restrain an application under 28 US Code §1782 was well established. The applicable standard was unconscionability. This included conduct that was oppressive or vexatious, or that interfered with the due process of the English court.
3. The principle in Yorkshire Provident Life Assurance Co v Gilbert that English disclosure in a libel action is confined to matters relevant to the pleaded case did not bar the defendants from gathering evidence by another legitimately available means. It restricted the intrusive powers of the English court, rather than the party’s freedom to obtain evidence elsewhere.
4. Under South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien” NV, it was legitimate to seek assistance from a foreign court with jurisdiction over the evidence. The foreign court could be trusted, as a matter of comity, to address substantive and procedural fairness. Differences between US third-party disclosure and the procedure under CPR r 31.17 did not themselves make the application unconscionable.
5. The breadth, duration, confidentiality and sensitivity of the documents sought, the timing of the application, its possible effect on non-parties, the availability of later English disclosure, the costs position, and the alleged lack of clarity about the documents’ provenance did not, individually or cumulatively, justify an injunction. The circumstances differed materially from Bankers Trust International Plc v PT Dharmala Sakti Sejahtera and Omega Group Holdings Ltd v Kozeny, where injunctions had been granted.
6. The costs owed by the defendants did not prevent them from using a legitimate means of obtaining evidence to support their existing or potentially amended defence. The injunction application was therefore refused.

1. Court of Appeal: In Soriano v Forensic News LLC, the defendants’ jurisdiction appeal was dismissed and the claimant’s cross-appeal was allowed in part: [2021] EWCA Civ 1952.
2. High Court (King’s Bench Division): The claimant’s application for an anti-suit injunction was refused.