Insights Court of Appeal upholds High Court ruling on s 9 of the Defamation Act 2013 despite disagreeing with some of the reasoning


Walter Soriano, a British citizen resident in the UK, issued proceedings against Forensic News LLC, situated in the USA, in relation to ten articles it had published online and in various social media postings, including on Facebook and Twitter, which appeared to make very serious allegations against Mr Soriano. The allegations included that he was the “thug” of the current Prime Minister of Israel, had close and corrupt links to the Russian State and various individuals of note, was guilty of multiple homicide, had received illegal “kickbacks”, had been convicted of corruption in Monaco, was part of a money laundering operation and had made illegal arrangements for corrupt oligarchs and public figures. Mr Soriano relied on breach of data protection laws, malicious falsehood, libel, harassment and misuse of private information. Mr Soriano applied for permission to serve the proceedings out of jurisdiction.

At first instance, Jay J granted permission to Mr Soriano to serve out of jurisdiction in relation to the libel claim, as well as in respect of limited claims for misuse of private information, but he refused permission to serve any of the other claims, including the claims in data protection and malicious falsehood.

In respect of the libel claim, Jay J held that Mr Soriano had discharged the burden on him under s 9 of the Defamation Act 2013 by showing that he was a British citizen whose personal and business interests lay principally in this jurisdiction and whose reputation was centred here, seeking remedies for harm caused to that reputation by publication in this jurisdiction and nowhere else. He was not a “libel tourist”, Jay J said. Further, Forensic News had failed to discharge the burden of showing whether a Californian court would countenance a claim for reputational harm suffered in England and Wales, or as to whether a remedy in the US would be adequate.

As for the malicious falsehood claim, Jay J held that the claims failed the merits test as Mr Soriano had no real prospect of establishing malice and had failed to plead a tenable case of Loutchansky malice.

The defendants appealed the decision to allow service out in the libel claim and Mr Soriano cross-appealed, arguing that he should have been permitted to pursue the claims in data protection and malicious falsehood. For an analysis of the data protection cross-appeal, see here.

In respect of the libel claim, Forensic News argued that: (i) Jay J had been wrong to hold that when a court is considering s 9 there is an evidential burden on a defendant to show that another forum is available and appropriate; and (ii) having found that Mr Soriano had been “far from forthcoming about his business interests”, Jay J had no safe basis on which to conclude that England and Wales was clearly the most appropriate place in which to bring the libel action, and was wrong to so conclude.

In his Respondent’s Notice, Mr Soriano sought to uphold Jay J’s decision on the further and alternative grounds that he had been wrong: (i) to hold that the standard of proof is the balance of probabilities rather than a good arguable case; and (ii) to reject the submission that expert evidence on the availability and appropriateness of an alternative forum is a necessary condition for the comparison required by s 9.

Giving the lead judgment, with which all Justices agreed, Lord Justice Warby found that s 9 is a modified version of the forum conveniens test and not a far-reaching change in the law that amounts to a “distinct parallel regime whose requirements must be met by a claimant independently of issues as to service and personal jurisdiction”, as Jay J had found. In Warby LJ’s view, the draftsman had taken the classic forum conveniens test as a starting point and had introduced modifications to alter the balance by removing or watering down the presumption that England and Wales is the natural forum for a claim in respect of publication here. The result was, Warby LJ said, that claimants who are better known outside this jurisdiction, are likely to find it hard to show that this is “clearly the most appropriate” jurisdiction for an international libel claim. However, it did not follow that the changes should be treated as having created an entirely novel and revolutionary regime.

Further, Warby LJ said, Jay J had been wrong to describe s 9 as concerned with “the subject-matter of the suit and not with personal jurisdiction over the defendant”. In Warby LJ’s view, the “subject-matter” interpretation was wrong because:

  1. it was an unnecessarily radical interpretation of s 9;
  2. s 9 was not primarily concerned with the “subject-matter” of the claim, but with the defendant’s domicile and the most appropriate jurisdiction in which to bring the claim;
  3. applying Jay J’s approach to s 9 would mean that a defendant served within the jurisdiction could in principle raise s 9 as a jurisdictional bar at any time, including at trial, which would make s 9 a stronger tool than a substantive defence to the claim; and
  4. contrary to Jay J’s findings, s 10 of the 2013 Act was not helpful in resolving the juridical nature of s 9.

Warby LJ also found that, as Jay J had found, it is the defendant contesting jurisdiction under s 9 who bears the burden of identifying a competing jurisdiction and proving that it is at least as suitable as England and Wales, as in a conventional forum conveniens dispute. Forensic News was wrong to argue that the claimant has the burden of proof because, as Warby LJ had already found, s 9 did not create a separate regime.

As for whether the standard to be applied was good arguable case or on the balance of probabilities, Warby LJ found that although, for procedural reasons, it was strictly unnecessary to decide the point, the correct standard for a s 9 issue is the well-established standard for forum conveniens disputes of a good arguable case, given that s 9 is not a new, independent regime, but a tailored modification of the established regime.

As for the nature of the evidence required and whether Mr Soriano was obliged to adduce evidence giving full details of his business interests here and elsewhere, Warby LJ said that there was no good reason for adopting any rigid rule about the nature of the evidence that either party is required to adduce on a contest under s 9. The court must simply be satisfied of the matters specified in the section, that the legal burden of doing so rests on the claimant, and that the claimant has a duty of full and frank disclosure at the without notice stage. Whether the evidence adduced is enough to meet these requirements depends on the circumstances of the case and is a matter for the Judge. It was not, therefore, apt for review on appeal.

As for the question of whether the party who bears the burden of proving the suitability of an alternative jurisdiction needs to adduce expert evidence about foreign law, Warby LJ said that there was no single answer to the question. There may be many cases in which that is desirable, and some in which it is essential. However, there may also be cases in which the law can be proved by other evidence, or by inference, or the presumption of similarity. All will depend on the facts and circumstances of the particular case.

Warby LJ concluded that, despite disagreeing with some of Jay J’s findings, his decision on the libel claim should be upheld. Overall, Forensic had published in the UK, on a substantial scale, some seriously defamatory allegations about a British citizen who was domiciled and resident here, and whose reputation was centred here. The only real candidate alternative jurisdiction was the US, where Mr Soriano had no significant reputation. In Warby LJ’s view, these considerations might well have been sufficient on their own to justify Jay J’s conclusion that Mr Soriano was not a “libel tourist” and that England and Wales was clearly the most appropriate place in which to bring the claim. This aspect of the appeal was dismissed.

As for the cross-appeal in malicious falsehood Mr Soriano accepted Jay J’s main finding but challenged the finding on Loutchansky malice. Giving a brief, but useful, summary of what a party pleading malice must plead and prove, Warby LJ said that Jay J’s reasoning and conclusions in this regard could not be impugned, and that Mr Soriano’s arguments were not capable of making good a case of Loutchansky malice. This aspect of the appeal was also dismissed. (Walter Tzvi Soriano v Forensic News LLC [2021] EWCA Civ 1952 (21 December 2021) — to read the judgment in full, click here).