Introduction

The case of Soriano v Forensic News LLC & Ors ([2023] EWCA Civ 223) presents a pivotal examination of the interplay between English defamation law and the utilization of foreign judicial procedures, specifically the United States' 28 USC §1782 application. The claimant, Mr. Soriano, an Anglo-Israeli national, initiated legal proceedings against two US-based defendants alleging defamation across eight online publications. Central to the dispute is the defendants' attempt to employ foreign court processes to procure evidence, raising critical questions about the boundaries of lawful evidence gathering in transnational litigation.

Summary of the Judgment

The England and Wales Court of Appeal upheld the lower courts' decisions, allowing the defendants to proceed with their 28 USC §1782 application in the Southern District of New York (DCSDNY). Mr. Soriano sought to prevent this by applying for an anti-suit injunction, deeming the application vexatious and oppressive. However, the court found no merit in such claims, affirming that defendants are permitted to gather evidence through lawful foreign means unless such actions are demonstrably abusive or interfere with the court's due process. The court dismissed most of Mr. Soriano's grounds of appeal, emphasizing that the principles governing evidence gathering in libel cases align with those in broader civil litigation.

Analysis

Precedents Cited

The judgment extensively references several key cases that have shaped the court's approach to evidence gathering and jurisdictional issues:

• South Carolina Insurance Co v. Assurantie Maatschappij "De Zeven Provincien" NV (1987): This case established that injunctions against foreign proceedings are warranted only when a party behaves in an unconscionable manner.
• Yorkshire Provident Life Assurance Co v. Gilbert (1895): Highlighted the necessity for defendants in libel actions to limit discovery to matters directly related to the issues in dispute.
• Bankers Trust International Plc v. PT Dharmala Sakti Sejahtera (1996): Addressed the court's role in providing instructions to foreign courts regarding the scope of discovery to prevent oppression.
• Omega Group Holdings Ltd v. Kozeny (2002): Demonstrated the court's willingness to injunct abusive 1782 applications that threaten the integrity of English proceedings.
• Intel Corp v. Advanced Micro Devices, Inc (2004): Provided guidelines on evaluating the propriety of 1782 applications, emphasizing the nature of foreign tribunals and the potential for circumvention of proof-gathering restrictions.

These precedents collectively inform the court's balanced approach, ensuring that evidence gathering via foreign procedures does not undermine the fairness or efficiency of English litigation.

Legal Reasoning

The court's legal reasoning centered on affirming that defendants are entitled to utilize all lawful means available for evidence gathering, including foreign procedures like the 1782 application, provided such actions are not abusive, oppressive, or unconscionable. The judgment clarified that the breadth of document requests under 1782 lies within the purview of the foreign court (DCSDNY) to assess. The English court's role is not to second-guess the foreign court's procedural determinations unless there is a clear legal error. Furthermore, the court emphasized that libel actions do not warrant special restrictions on evidence gathering beyond those applicable to general civil proceedings.

The court also dismissed the notion that defendants engaging in 1782 applications inherently constitutes libel tourism, clarifying that prior rejections based on jurisdictional grounds within English courts do not preclude defendants from seeking evidence through appropriate foreign channels.

Impact

This judgment has significant implications for future defamation and broader civil litigation in England:

• Clarification of Evidence Gathering: Reinforces that defendants can seek evidence through foreign judicial assistance, promoting thorough and comprehensive defense preparations.
• Jurisdictional Boundaries: Affirms England and Wales' commitment to being a suitable forum for litigation while accommodating lawful foreign evidence requisition.
• Libel Tourism Considerations: Mitigates concerns that defendants can exploit foreign jurisdictions to circumvent English legal protections against libel tourism.
• Non-Abusive Threshold: Establishes a clear threshold for what constitutes abusive behavior in the context of evidence gathering, providing guidance for both litigants and courts.

Overall, the decision balances the need for robust adversarial processes with the protection of litigants from potential abuses of foreign legal mechanisms.

Complex Concepts Simplified

28 USC §1782 Application

Under the United States Code Title 28, Section 1782, parties involved in a legal proceeding in the US can seek assistance from US federal courts to obtain evidence located abroad (e.g., in England and Wales). This provision facilitates cross-border litigation by allowing for the sharing of relevant documents and information needed to prepare a case.

Anti-Suit Injunction

An anti-suit injunction is a court order that restrains a party from initiating or continuing litigation in another jurisdiction. In this case, Mr. Soriano sought such an injunction to prevent the defendants from pursuing the 1782 application in New York, arguing that it was intended to harass and oppress.

Libel Tourism

Libel tourism refers to the practice of pursuing defamation claims in foreign jurisdictions perceived to be more plaintiff-friendly, potentially undermining the freedom of expression and leading to abuse of the legal system. Mr. Soriano alleged that the defendants' 1782 application was a form of libel tourism aimed at circumventing English defamation protections.

Defamation Act 2013, Section 9

This section governs the jurisdiction in defamation cases, stipulating that English courts are the appropriate forum if the claimant can demonstrate it is the most suitable venue for the case. Mr. Soriano successfully established that England and Wales were the proper jurisdiction for his defamation claim.

Conclusion

The Court of Appeal's decision in Soriano v Forensic News LLC & Ors underscores the judiciary's nuanced approach to balancing the integrity of English legal proceedings with the legitimate needs of defendants to gather evidence internationally. By affirming that 28 USC §1782 applications are permissible unless they cross into abusive or oppressive territory, the court ensures that defendants are not unduly restricted in preparing their defenses while safeguarding the judicial process from potential foreign overreach. This judgment not only clarifies the parameters within which foreign evidence gathering operates but also reinforces the adaptability of English defamation law in an increasingly globalized legal landscape.