King v Lewis & Ors

Factual and Procedural Background

The Defendants applied to set aside an order granting permission to serve the claim form out of the jurisdiction in a libel action. The Claimant, a well-known international boxing promoter, initiated proceedings against the Defendants concerning defamatory statements published online in connection with ongoing litigation in New York. The Defendants include a British world heavyweight boxing champion, a Nevada-based promotion company, and a New York attorney representing them in the New York litigation. The New York litigation involves claims for interference with a boxing agreement and substantial damages.

The defamatory publications at issue appeared on two boxing websites and included allegations of anti-semitism made by the attorney Defendant against the Claimant. The Claimant excluded other serious allegations from the English proceedings to avoid duplication with the New York case. Proceedings were commenced in England with permission granted to serve out of the jurisdiction. The Defendants challenged this permission, arguing lack of jurisdiction and improper forum.

Legal Issues Presented

1. Whether the English court has jurisdiction under CPR Part 6.20 to permit service of the claim form out of jurisdiction in this libel action.
2. Whether the Claimant has satisfied the court that England and Wales is the proper forum to bring the claim under CPR Part 6.21(2A).
3. Whether the defamatory publications occurred within England and Wales, considering the nature of internet publication.
4. Whether the Defendants, particularly the first and second Defendants, are responsible for the defamatory statements made by the third Defendant.
5. The applicability of legal professional privilege to communications relevant to the defamatory publications.
6. The relevance of the double actionability rule and the appropriate forum for defamation claims involving internet publications.

Arguments of the Parties

Claimant's Arguments

• The defamatory publications occurred in England and Wales as the internet postings were downloaded there, thus English law applies.
• England and Wales is the appropriate forum due to the Claimant's substantial reputation, business connections, and personal links within this jurisdiction.
• The Claimant relies on established legal principles that publication occurs where the defamatory words are read or heard, including internet publications.
• There is a presumption that the natural forum is where the tort was committed, which in this case is England and Wales.
• The Claimant contends there is a serious issue to be tried as to whether the first and second Defendants sanctioned the defamatory publications by the third Defendant as part of an overall strategy.
• The Claimant rejects the Defendants' suggestion that the defamatory term "shyster" has anti-semitic connotations in England and focuses on the Claimant’s state of mind and motivation when making the remarks.
• The Claimant argues that authorisation of publication does not require agency and that the third Defendant caused the publications in England by his statements to the websites.

Defendants' Arguments

• The court lacks jurisdiction under CPR Part 6.20 to permit service out of the jurisdiction in this case.
• The Claimant failed to show England and Wales is the proper place to bring the claim under CPR Part 6.21(2A).
• The defamatory publications occurred in the United States, and New York is the appropriate forum.
• The Claimant's case against the first and second Defendants is speculative, lacking evidence of their sanction or involvement in the publications by the third Defendant.
• Legal professional privilege protects communications between the third Defendant and his clients, limiting evidence relevant to the claim.
• The term "shyster" does not carry anti-semitic connotations in New York, and the claim would not survive there due to differences in defamation law.
• Authorisation of publication requires agency, which is absent in relation to internet users downloading the content in England.
• There is no precedent where a U.S. resident obtained permission to serve out against another U.S. resident for a U.S.-based publication.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bata v Bata (1948) WN 366	Publication is regarded as taking place where defamatory words are read or heard.	Supported the principle that publication occurs at the place of download for internet defamation.
Godfrey v Demon Internet [2001] QB 201	Publication of internet postings occurs upon download.	Applied to affirm that internet defamation is actionable where downloaded.
Loutchansky v Times Newspapers Ltd [2002] QB 783	Internet publication occurs where the material is accessed.	Reinforced the location of publication for internet defamation.
Gutnick v Dow Jones Inc [2002] HCA 56	Publication occurs where material is downloaded and read.	Supported the jurisdictional basis for English courts in internet defamation cases.
Shevill v Presse Alliance SA [1996] AC 959	No "single publication" rule; damage is presumed in defamation.	Confirmed presumption of damage and multiple acts of publication for jurisdiction.
Berezovsky v Michaels [2000] 1 WLR 1004	Forum non conveniens and locus delicti principles in defamation claims.	Used to support the presumption that England is the natural forum where the tort occurred.
Diamond v Sutton (1866) LR 1 Ex 130	Claimant must show injury to reputation within the jurisdiction.	Applied to limit compensation to injury suffered in England and Wales.
The Albaforth [1984] 2 Ll.R. 91	Weight given to the locus delicti in determining proper jurisdiction.	Supported the presumption favoring England as the proper forum.
Slipper v BBC [1991] 1 QB 283	Defamation damage extends beyond original publication due to percolation.	Used to illustrate the spread of defamatory statements within the community.
Chadha v Dow Jones Inc [1999] EMLR 724	Connection with jurisdiction and injury to reputation as forum criteria.	Distinguished on facts; unlike in Chadha, Claimant had strong English connections.

Court's Reasoning and Analysis

The court examined the jurisdictional issue based on whether the defamatory publications occurred in England and Wales, focusing on the nature of internet publication as taking place where the material is downloaded and read. The Claimant demonstrated a substantial reputation and business presence in England, including media appearances and connections within the Jewish community, which was relevant given the nature of the defamatory allegations.

The court acknowledged the ongoing New York litigation as the background but found that the defamatory publications targeted the Claimant's reputation in England and Wales. The court considered the Defendants' contention that the publications were solely U.S.-based and that legal professional privilege might shield relevant communications but found that the Claimant's case was not mere speculation but an arguable inference that the first and second Defendants sanctioned the publications by the third Defendant as part of a broader strategy.

The court rejected the Defendants' argument that the term "shyster" had anti-semitic connotations only in New York, emphasizing the Claimant's state of mind and the English publication context. It also held that authorisation of publication does not require agency in the strict sense and that the third Defendant's actions in communicating with the websites were sufficient to establish responsibility for publication in England.

Given these considerations and the evidence of the Claimant's reputation and the nature of the publications, the court concluded that England and Wales is the appropriate forum and that the claim should proceed here.

Holding and Implications

The court declined to set aside the order granting permission to serve the claim form out of the jurisdiction, thereby allowing the libel action to proceed in England and Wales.

The direct effect of this decision is that the Claimant may pursue the defamation claim within the English courts despite the Defendants' residency and the U.S. background of the dispute. The ruling does not establish a new precedent but applies established principles governing jurisdiction in internet defamation cases and the appropriate forum for such claims.