Shopping and suing

The law lords announced yesterday that the notorious Russian politician Boris Berezovsky and a business associate should be allowed to exploit British libel laws to sue in London a US magazine which called them "outrageous criminals". Lord Hoffmann, however, disagreed.

Lord Hoffmann
Friday May 12, 2000
The Guardian

The plaintiffs are Russian businessmen who claim that they have been defamed by an article published in an American business magazine and distributed almost entirely in the US but also in limited numbers in other countries including England. The article is concerned with their activities in Russia.

The plaintiffs adduced evidence that, as Russian businessmen, they made frequent visits to this country and were known to people here. One of them had a divorced wife and children living here. Their activities in Russia had attracted a certain amount of publicity, not all favourable, in English newspapers. So they had a reputation in this country and had therefore suffered "significant damage" here.

The [original] judge ... summed it up by saying: "I take the view that the two plaintiffs' connection with this country is tenuous. There is some but it is tenuous." He went on to comment on the article: "[T]here is no English connection in the article at all ... [I]t is wholly connected with matters in Russia."

He said that he was satisfied on the expert evidence that substantial justice could be done if the plaintiffs sued in Russia. The same would be true if they sued in the US, despite differences in the libel laws of the three countries.

... The notion that Mr Berezovsky, a man of enormous wealth, wants to sue in England in order to secure the most precise determination of the damages appropriate to compensate him for being lowered in the esteem of persons in this country who have heard of him is something which would be taken seriously only by a lawyer.

The common sense of the matter is that he wants the verdict of an English court that he has been acquitted of the allegations in the article, for use wherever in the world his business may take him. He does not want to sue in US because he considers ... it too likely that he will lose.

He does not want to sue in Russia for the unusual reason that other people might think it was too likely that he would win. He says that success in the Russian courts would not be adequate to vindicate his reputation because it might be attributed to his corrupt influence over the Russian judiciary.

This in itself is enough to show that Mr Berezovsky is not particularly concerned with damages. The defendants were willing to undertake to abide by any order of the Russian court as to damages and to accept the jurisdiction of that court to award damages for injury to the plaintiffs' reputation in England as well as anywhere else.

The plaintiffs obtained a further undertaking by the defendants that they would not "denigrate the integrity competence or justice of the Russian court."

I did not think that the evidence directed to showing that the article had had the effect of lowering the plaintiffs in the esteem of various bankers and accountants in London and Manchester would have affected the ... decision. Whatever the reputation of the plaintiffs in this country, it was a reputation based on their activities in Russia.

The plaintiffs are forum shoppers in the most literal sense. They have weighed up the advantages to them of the various jurisdictions that might be available and decided that England is the best place in which to vindicate their international reputations.

They want English law, English judicial integrity and the international publicity which would attend success in an English libel action.

My Lords, I would not deny that in some respects an English court would be admirably suitable for this purpose. But that does not mean that we should always put ourselves forward as the most appropriate forum in which any foreign publisher who has distributed copies in this country, or whose publications have been downloaded here from the internet, can be required to answer the complaint of any public figure with an international reputation, however little the dispute has to do with England.

Your Lordships' House [has] declined the role of "international policeman" in adjudicating upon jurisdictional disputes between foreign countries. Likewise in this case ... the English court should not be an international libel tribunal for a dispute between foreigners which had no connection with this country.

:- Extracted from Lord Hoffmann's dissenting judgment in Berezovsky v Michaels & others. Full judgments are at HM Stationery Office

© Copyright Guardian Media Group plc. 2000

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