As matters stand, the amending legislation required by Brexit will come into force on 1 January 2021. Its principle direct effect on publication cases will be:

  1. That permission of the English court will be required in order to serve legal proceedings on defendants in member states of the EU and the Lugano Convention, as is currently the position with regard to defendants in other countries.
  2. The provisions of s. 9 Defamation Act 2013 will be extended so that that the English court does not have jurisdiction to hear a defamation case against a defendant domiciled anywhere outside the UK “unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”

It has been usual practice, even before Shevill, for claimants who bring defamation proceedings in England against foreign publishers to limit the claim for damages to publication within the jurisdiction of England and Wales. The point was made by Ackner L.J. in The Albaforth [1984] 2 Lloyds Rep 9 that “…the jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute.”

In Schapira v Ahronson [1999] EMLR 735 Phillips L.J. described it as an “uphill task” for an Israeli newspaper to try to persuade the court that Israel was clearly the more appropriate forum to determine an action for defamation brought in England by an English domiciled claimant whose claim was confined to publication within England and Wales. Lord Hoffmann, however, in Berezovsky v Michaels (2001) made clear that the formulation of the claim was but one of the factors to be taken into account by the English court in deciding upon the appropriate forum.

With regard to the need for a claimant to obtain the court’s permission to serve proceedings outside the jurisdiction it has long been understood and accepted that a defamation claimant must confine his/her/its claim to publication within England and Wales. This is said to be the effect of the “rule in Diamond v Sutton.”

The 1866 Court of Exchequer judgment in Diamond v Sutton concerned an action for defamation brought in England against a Jersey-based defendant. Under the procedural rules in existence at the time, proceedings could be brought against British subjects resident outside the jurisdiction provided that the court was satisfied that “there is a Cause of Action, which arose within the Jurisdiction…” The Court held that, whilst it was permissible for the claimant to sue the defendant in England for acts committed within the jurisdiction, it was an abuse of the process to include in the same action matters for which the rules did not give the claimant power to sue. The court likened the situation to where a claimant might bring the defendant before the English court “on a bill of exchange, and then sue him for an assault in Jersey.”

Exactly how and when this apparently straightforward judgment acquired the status of a “rule” peculiar to publication cases is a mystery. Its existence, however, was accepted by Lords Steyn and Hope in Berezovsky v Michaels. Lord Steyn in his judgment explained that its effect was that “a plaintiff who seeks to serve out of the jurisdiction in respect of publication within the jurisdiction is guilty of an abuse if he seeks to include in the same action matters occurring elsewhere.” Lord Hope in his judgment went further, stating that “The rule which applies to these cases is that the plaintiff must limit his claim to the effects of publication in England” (our emphasis). It is not apparent how such a hard and fast rule can be said to be derived from either Diamond v Sutton or any other cited authority.

Although the statements of Lord Steyn and Lord Hope were plainly obiter – in accordance with the usual practice Boris Berezovsky’s claim had been confined to publication within the jurisdiction of the English court – they have since been quoted as confirmation of a strict rule that it would be an abuse for any claimant seeking permission of the English court to serve defamation proceedings outside the jurisdiction not to limit his/her/its claim to publication within the jurisdiction of the English court.

The rule in Diamond v Sutton, if it exists, would require the English courts with effect from 1 January 2021 to adopt a position fundamentally at variance with the Brussels Regime and the rationale of the judgments in Owusu, eDate Advertising and Bolagsupplysningen. Unlike our European neighbours, those domiciled in England, or whose centre of interests lies in England, when required to serve proceedings out of the jurisdiction will be forbidden from bringing a claim for damages against any EU-domiciled defendant in respect of defamatory material published anywhere other than in England, and will have no means through the English courts to seek the rectification or removal of offending material posted on the internet outside England. Their only means of redress would be to bring proceedings in the EU state in which at least one of the defendants is domiciled.

Helpfully in November 2020 Saini J in Qatar Airways Group v Middle East News at paragraphs 263-306 of his judgment undertook a timely, but long overdue, examination of the rule in Diamond v Sutton. He concluded that “there is no freestanding rule of substantive law which in and of itself makes it an abuse to sue for malicious falsehood in respect of publications outside the jurisdiction.” Saini J was careful to emphasise that nothing in his judgment was intended to apply to defamation, but it is not apparent why his thorough analysis and the conclusion he reached should not equally apply to all publication cases.

Conclusion

Over the last four decades English law has developed in conformity with the Brussels Regime. Decisions of the CJEU have regularly found their way into English jurisprudence. An advantage of the Brussels Regulation is that its rules regarding jurisdiction and the enforcement of judgments are intended to provide a high degree of predictability and legal certainty and to minimise the possibility of irreconcilable judgments between member states.

Against this, English law (with the exception of the anomalous “rule” in Diamond v Sutton) has traditionally preferred to adopt a more flexible approach which, with regard to jurisdiction, requires the court to take into account all the infinitely various circumstances of a particular claim in order to determine where in the world it is most appropriate for the case to be tried “in the interests of all the parties and the ends of justice” (per Lord Hope in Berezovsky v Michaels). Each case must be considered on its own particular facts, a point emphasized by Lord Hoffmann in Berezovsky v Michaels where he said “All the cases cited are in some respects similar and in some respects different. But, my Lords, I protest against the whole exercise of comparing the facts of one case with those of another.”

The question which arises with effect from 1 January 2021 will be the extent, if any, to which judgments of the English courts based on, or influenced by the Brussels Regime, will retain any usefulness as precedents. By way of example, once the rule that a claimant is entitled as of right to bring proceedings in the country of a defendant’s domicile no longer applies, would it be open for an English newspaper which publishes on its website an article accusing a Hollywood celebrity of some serious allegation such as rape or wife-beating to contend that in the interests of justice the case should be tried in the US with US law applying? Would it be open to a French publisher to contend before an English court, even where the clamant is domiciled in England, or has his/her/its centre of interests in England, has limited the claim to publication within England and is able to produce evidence likely to satisfy at trial the test of serious harm, that in the interests of justice the more appropriate forum for the trial would be France? The answer to these questions, as matters stand, would appear to be yes, but the outcome of any application will depend on all the circumstances.

The advantage of flexibility is that it allows a court to weigh in the balance competing considerations in order to try to arrive at the most appropriate evidence-based resolution of the issue before it. It also has financial advantages for the legal profession in that it provides scope for argument in each case, and where there is scope, the lawyers will surely argue. The disadvantages include the uncertainty of outcome in an expensive and time-consuming legal process. There is a great benefit in having clear, well-defined laws so that parties – and prospective parties – to litigation will know what their rights are, and how and where to enforce them, before they are told by the Judge, Court of Appeal or Supreme Court.

In eDate Advertising and Bolagsupplysningen the CJEU grasped the nettle of internet publication which knows no territorial boundaries when it ruled that applications for rectification and removal of offending material could be brought not only where the defendant was domiciled but also in the courts where the claimant has his/her/its centre of interests. Almost invariably such cases will engage ECHR Article 8 (privacy, personality) and Article 10  (freedom of expression) rights, whilst any legal proceedings will engage Article 6 (fair trial).  Were English law to deny those domiciled, or those who have their centre of interests, in England the same rights and means of remedy as are available to those within EU member states, it will be open to challenge before the European Court of Human Rights.

To avoid a free-for-all post 1 January 2021 it will surely be preferable for the English courts to continue to take full account of both the provisions of the Recast Brussels Regulation and decisions of the CJEU, especially insofar, as with Shevill, Owusu, eDate Advertising and Bolagsupplysningen, they have already entered English case-law. In practical terms, the effect would be that, instead of focusing only on the facts of a particular case, the court would also pay regard to the strong public interest of there being clearly defined rules for deciding where a case should be tried.

Andrew Stephenson is a Consultant and Sarah Daniel an Associate Solicitor at Hamlins LLP.