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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lewis & Ors v King  EWCA Civ 1329 (19 October 2004)
Cite as:  EWCA Civ 1329
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(The Honourable Mr Justice Eady)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE LAWS
| Lennox Lewis & Ors
|- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Desmond Browne QC & Mr Matthew Nicklin (instructed by Morgan Lewis Bockius) for the Respondent
Crown Copyright ©
This is the judgment of the court.
"In any proceedings to which rule 6.19 does not apply, a claim form may be served out of the jurisdiction with the permission of the court if –
(2) a claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction,
(8) a claim is made in tort where
(a) damage was sustained within the jurisdiction; or
(b) the damage sustained resulted from an act committed within the jurisdiction."
There is no doubt but that CPR 6.20(8) applies to the case. In those circumstances the learned Master, and on appeal the judge, enjoyed a discretion whether or not to order service out. The discretion's exercise required the court to decide what was the forum conveniens for the conduct and trial of the proceedings – England or the United States (effectively New York). (CPR 6.20(2) was also relied on, since the claim form contained an application for an injunction against further publication; but since the websites are presumably controlled in California, it must at least be problematic whether that application could be said to require or prohibit anything being done within the jurisdiction.) The essential question arising on this appeal is whether Eady J fell into any error of law in exercising his discretion to uphold the order for service out. The appellants accept that if he did not, that is an end of the matter. Only if the judge can be shown to have made a mistake of law would any discretion arise in this court to decide what is the right order on the merits.
THE FACTS AND THE ALLEGED LIBELS
"5. … King and DKP are presently being sued by Tyson for having stolen as much as $100 million from Tyson during the period that DKP served as Tyson's exclusive boxing promoter. DKP's conduct was so raw that its own attorneys… settled Tyson's case against them for an amount in excess of $20 million. Also on information and belief, King was desperate to avoid a trial in the Tyson case… because he well knew that he and DKP might well be bankrupted by a loss in the case.
6. … [King] commenced a campaign of bribery, lies and even a death threat to convince Tyson not to execute the Second Lewis/Tyson Agreement and to breach his obligations thereunder… More specifically, on information and belief:
(a) On an April 23 2003 telephone call, King threatened Jeff Wald, a friend of Tyson, by stating to Wald that he would 'shove a shotgun up [his] ass', and would 'come out to California and kill [him]' if Wald 'messed with [his] fighter', i.e. by seeking to interfere with King's efforts to deter Tyson from signing the Second Lewis/Tyson Agreement. Given King's history of violence, including a four year prison sentence for beating a man to death, this was not an idle threat…"
It is claimed that by reason of King's and DKP's "tortious interference" Lion and Lewis have suffered loss to the tune of at least $35 million. "In addition, given King's and DKP's wanton, wilful and malicious conduct, which is shocking to the conscience, punitive damages in the amount of $350 million should be awarded against them."
"I have read Don King's recent interviews with Tim Smith and others with great amazement. But for his plainly anti-semitic remark – calling me a 'shyster lawyer' – I would have been merely amused by his desperate and ridiculous charges. Unfortunately, this is not the first time I have encountered such bigotry by Don. Last year, one of his in-house lawyers sent me a letter on Yom Kippur eve demanding that I take action on Yom Kippur. Needless to say, I vigorously objected. Subsequently, that lawyer apologised to me in person while explaining that Don had explicitly refused to permit him to apologise in writing. Since, Don apparently believes that insulting Jews is appropriate conduct (indeed, he reportedly has even playfully imitated Hitler during a press conference), I am sure that no apology will be forthcoming for this more recent conduct.
Were it not for the anti-semitic nature of Don's comments, I would probably have remained silent. No one that knows the both of us is likely to take Don's word over mine. But in light of Don having stooped so low, it is time to take the gloves off… I realise that he has no shame even when he descends into rank bigotry."
"July 08, 2003; shortly after returning home from vacation, Lennox Lewis's attorney Judd Burstein found some time to speak with boxingtalk.com. Apparently he knew who the 'others' were. In this exclusive one on one interview, Burstein and I discuss the ongoing verbal warfare between he [sic] and promoter Don King. As well as Lennox Lewis's suit against Tyson and King, and King's retaliatory counterclaim against Lennox Lewis. Read on to see what the heavyweight champ's attorney has to say.
GL: Obviously you've read Don's remarks in my article and Tim Smith's article. What are your thoughts on his comments?
JB (Burstein): My first reaction was to really ignore what he had to say…
What got me upset and led me to respond to him was the clearly anti-semitic tone in his comments. The term 'shyster lawyer' when used in connection with a Jewish lawyer is designed to provoke anti-semitic feeling. And if this were just something in isolation I wouldn't care about it. But I was told by a lawyer working for Don King, that he wanted to apologise for demanding action from me on Yom Kippur, and Don King has refused to permit him to apologise to me in writing. It's been reported by papers that he imitated Hitler at a press conference, and I was just told today, that during a negotiation with Shelly Finkel, he spent the whole time referring to him as Shelly Finkelstein. He is quite plainly an anti-semite and that kind of conduct and attitude has no place in this modern world. He has every right to disagree with me and take a different position, or argue that I haven't acted appropriately. But when he starts with bigotry, that's when someone has to stand up and say something.
GL: So you have absolutely no doubt that you're not reading too much into what he's saying by accusing him of bigotry?
JB: If this were an isolated incident, I would say that perhaps I was reading too much into it. But it's not an isolated incident and I've seen him play the race card before…"
ARGUMENTS ON THE FACTS
"36. Other issues on the horizon are justification, fair comment and qualified privilege. Principally, I suppose, the argument will turn upon whether in describing Mr Burstein as a 'shyster lawyer' Mr King was indeed giving vent to anti-semitic or racist attitudes. Mr Burstein's allegations refer to Mr King 'believing' that it was appropriate to insult Jews, and it was also alleged that his words were 'designed' to provoke anti-semitic feeling. Yet one of the arguments Mr Price has raised, in order to demonstrate that New York would be the appropriate forum, was that it has to be determined how the term 'shyster' would be construed in that city. In particular, does it have a special meaning there different from how it would be understood by English readers? I do not find this persuasive for a number of reasons:
(1) We are concerned with English publication only. What matters, therefore, would be what is conveyed by the words complained of in that jurisdiction.
(2) It is important to focus not so much on how 'shyster' would be interpreted in any particular country but rather on what Mr King's state of mind and motivation was when he uttered the remarks.
(3) If an equivalent libel action to this were commenced by Mr King in New York it would not, according to the Defendants' evidence, 'survive' (because of the different approach of New York law to defamation): See paragraph 11 of Mr Burstein's own witness statement.
(4) It seems clear from a web search of 900 dictionaries (including specifically American ones) that there is no support for the word 'shyster' having any anti-semitic connotations.
37. In the light of the proposition that no such actions could survive in New York, it would seem that some of the other arguments about whether New York would be a more convenient forum become of theoretical interest only. There would seem to be little point in addressing how much more convenient it would be, or would not be, for people to give evidence there rather than here.
38. In any event, however, it seems clear that the Claimant would wish to adduce evidence from a number of witnesses based in the United Kingdom, on such matters as his reputation and connection with this country and, in particular, his links with Jewish charity work in London."
THE DEFENDANTS' PRINCIPAL CASE
"… [I]t seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge… An appeal should be rare and the appellate court should be slow to interfere."
Lord Goff of Chieveley made it clear that despite the use of the Latin adjective conveniens the real question in these cases was, which was the more appropriate forum. Then, discussing the resolution of applications brought under the predecessor of CPR 6.20 (RSC Order 11) he said - and here is the second proposition:
"[It] is not merely that the burden of proof rests on the plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so."
Mr Price places some emphasis on this. He points to the fact that in his formulation of what the claimant must demonstrate, the judge (paragraph 14) omits the adverb "clearly". But with respect to Mr Price this is a footling complaint, and in fairness he barely pressed it. It is unrealistic to suppose that this experienced specialist judge misunderstood or misremembered the approach taken in Spiliada to judicial decisions as to the choice of appropriate forum. It is to be noted that no other criticism is directed to the judge's general summation of the law appearing at paragraphs 14 – 21; we need not set it out.
"Now it follows from those decisions that, where it is held that a Court has jurisdiction on the basis that an alleged tort has been committed within the jurisdiction of the Court, the test which has been satisfied in order to reach that conclusion is one founded on the basis that the Court, so having jurisdiction, is the most appropriate Court to try the claim, where it is manifestly just and reasonable that the defendant should answer for his wrongdoing. This being so, it must usually be difficult in any particular case to resist the conclusion that a Court which has jurisdiction on that basis must also be the natural forum for the trial of the action."
In Berezovsky Lord Steyn expressly approved this approach, and did so in a context where it was being directly challenged in their Lordships' House. He said:
"For my part the Albaforth line of authority is well established, tried and tested, and unobjectionable in principle."
"In a defamation case the judge is not required to disregard evidence that publication has taken place elsewhere as well as in England. On the contrary, this feature of the case, if present, will always be a relevant factor. The weight to be given to it will vary from case to case, having regard to the plaintiff's connection with this country in which he wishes to raise his action. The rule which applies to these cases is that the plaintiff must limit his claim to the effects of the publication in England: Diamond v Sutton (1866) LR 1 Ex 130; Schapira v Ahronson  EMLR 735; see also Eyre v Nationwide News Pty. Ltd  NZLR 851. Common sense suggests that the more tenuous the connection with this country the harder it will be for the claim to survive the operation of this rule."
"Returning to the judgment of Popplewell J he said…:
'This being a case where both plaintiff and defendant are outside the jurisdiction I am wholly unpersuaded that there is any presumption in favour of the plaintiff or that the authorities as to where a cause of action arises are of any assistance in the instant case.'
In my judgment there is nothing objectionable in that way of stating the law in this particular case. Here the appellants and the respondents were and are outside the jurisdiction and consequently it was for the appellants to show that they had sufficient connections with this country and a reputation to protect in this country."
"… counsel put forward the global theory on a reformulated basis. He said that when the court, having been satisfied that it has jurisdiction, has to decide under Order 11 whether England is the most appropriate forum 'the correct approach is to treat the entire publication – whether by international newspaper circulation, trans-border or satellite broadcast or Internet posting – as if it gives rise to one cause of action and to ask whether it has been clearly proved that this action is best tried in England.' If counsel was submitting that in respect of trans-national libels the court exercising its discretion must consider the global picture, his proposition would be uncontroversial. Counsel was, however, advancing a more ambitious proposition. He submitted that in respect of trans-national libels the principles enunciated by the House in the Spiliada case… should be recast to proceed on assumption that there is in truth one cause of action. The result of such a principle, if adopted, will usually be to favour a trial in the home courts of the foreign publisher because the bulk of the publication will have taken place there."
This "more ambitious" proposition was rejected by Lord Steyn. But we consider with respect that his reference to the court's need, in the case of trans-national libels, to "consider the global picture" is something more than a passing aside. What is "the global picture"? Where there is publication, say in two jurisdictions only, it remains relatively confined, and the Albaforth starting-point may remain very meaningful. But in relation to Internet libel, bearing in mind the rule in Duke of Brunswick v Harmer that each publication constitutes a separate tort, a defendant who publishes on the Web may at least in theory find himself vulnerable to multiple actions in different jurisdictions. The place where the tort is committed ceases to be a potent limiting factor.
"39. It was suggested that the World Wide Web was different from radio and television because the radio or television broadcaster could decide how far the signal was to be broadcast. It must be recognised, however, that satellite broadcasting now permits very wide dissemination of radio and television and it may, therefore, be doubted that it is right to say that the World Wide Web has a uniquely broad reach. It is no more or less ubiquitous than some television services. In the end, pointing to the breadth or depth of reach of particular forms of communication may tend to obscure one basic fact. However broad may be the reach of any particular means of communication, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction."
"181. A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet in order for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it. And any person who gains access to the Internet does so by taking an initiative to gain access to it in a manner analogous to the purchase or other acquisition of a newspaper, in order to read it."
"192. … Comparisons can, as I have already exemplified, readily be made. If a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and inflicts damage."
"Although we have some sympathy with the concerns expressed about the levels of 'global risk', any solution would require an international treaty, accompanied by greater harmonisation of the substantive law of defamation. We do not think that the problem can be solved within the short or medium term. We do not therefore recommend reform in this area at the present time."
"… [I]t seems to me that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge… An appeal should be rare and the appellate court should be slow to interfere."
The theme is given added force by Lord Hoffmann in Berezovsky:
"The decision of the Court of Appeal in this case has since been distinguished in Chadha v Dow Jones…, in which the plaintiff and the defendants were both resident in the United States. The respondent plaintiffs say that that case is likewise distinguishable. So it is. 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. It is exactly what Lord Templeman in the Spiliada case said should not be done and what the judge rightly refused to do."
"The judge's approach to the limitation point was further criticised by the defendants' counsel on the grounds that, following the guidance given by Lord Goff in Spiliada relating to the treatment of a 'legitimate personal or juridical advantage' (at pp. 482-484) he should first have considered which was the appropriate forum without reference to the juridical advantage which M. & R. would enjoy by proceedings in England, and only if he decided that New York was prima facie the appropriate forum, should have gone on to consider whether, none the less, the limitation point rendered a trial in England necessary for the purpose of doing substantial justice between the parties. We think that the approach to this point suggested on behalf of the defendants is correct in principle and that at least on one reading of the judge's judgment, he did not follow it, but took into account the juridical advantage point in his initial search for the appropriate forum."
Here are the material extracts from Lord Goff's speech in Spiliada:
"The key to the solution of this problem lies, in my judgment, in the underlying fundamental principle. We have to consider where the case may be tried 'suitably for the interests of all the parties and for the ends of justice.' Let me consider the application of that principle in relation to advantages which the plaintiff may derive from invoking the English jurisdiction. Typical examples are: damages awarded on a higher scale; a more complete procedure of discovery; a power to award interest; a more generous limitation period. Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings… simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum. Take, for example, discovery. We know that there is a spectrum of systems of discovery applicable in various jurisdictions… No doubt each of these systems has its virtues and vices; but, generally speaking, I cannot see that, objectively, injustice can be said to have been done if a party is, in effect, compelled to accept one of these well-recognised systems applicable in the appropriate forum overseas… Then take the scale on which damages are awarded. Suppose that two parties have been involved in a road accident in a foreign country, where both were resident, and where damages are awarded on a scale substantially lower than those awarded in this country. I do not think that an English court would, in ordinary circumstances, hesitate to stay proceedings brought by one of them against the other in this country merely because he would be deprived of a higher award of damages here.
But the underlying principle requires that regard must be had to the interests of all the parties and the ends of justice; and these considerations may lead to a different conclusion in other cases… [T]ake the example of cases concerned with time bars… Now, to take extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiff's claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiff's action would be time barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings… in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country…"
DID THE JUDGE MAKE A MISTAKE OF LAW?
"In addition, I believe that if the claim which is being brought by Mr King in these proceedings in England was brought in the US, it would not survive. This is due to rules in the US which apply to statements made in relation to public figures. Mr King therefore appears to be deliberately 'forum-shopping' by bringing his claim in England."
Burstein's primary case, of course, was that New York was the appropriate forum. There was a certain irony in his assertion that proceedings brought in the appropriate forum would in effect be doomed to failure. Mr Asserson for King picked up the point at paragraph 13 of his second witness statement:
"At Paragraph 11.9 of his statement, the Third Defendant, who is an experienced US attorney, states that under US law the present claim 'would not survive'. It is hard to think of a more compelling reason than this to allow the action to proceed in England. The Claimant seeks relief before the English Court for a tort committed in England. The Third Defendant's argument that it should be heard in the USA specifically because the Claimant could not get relief there seems entirely illogical."
Note 1 Duke of Brunswick v Harmer (1849) 14 QB 185. [Back] Note 2 CPR 6.19 concerns service out of the jurisdiction where the permission of the court is not required. It has no application in this case. [Back] Note 3 2nd statement, paragraph 8. [Back] Note 4  AC 460. [Back] Note 5 465F-G. [Back] Note 6 474E-475C. [Back] Note 7 481D-E. [Back] Note 8  2 Ll LR 91. [Back] Note 9 At p. 96. Cf Ackner LJ at 94. [Back] Note 10  1 WLR 1004, 1014E. [Back] Note 11 at 1032. [Back] Note 12  EMLR 724. [Back] Note 13 At 733. [Back] Note 14  HCA 56. [Back] Note 15 1012. [Back] Note 16 Paragraph 39 is to be found in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ; paragraphs 181 and 192 are in the separate judgment of Callinan J. [Back] Note 17 See Gutnick paragraphs 29 ff. [Back] Note 18 Scoping Study No 2, December 2002. [Back] Note 19 Paragraph 4.54. [Back] Note 20 Collins, The Law of Defamation and the Internet (OUP), ch. 24 paragraph 24.52. [Back] Note 21 465F-G. [Back] Note 22 1021G. [Back] Note 23  1 QB 391. [Back] Note 24 488D-F. [Back] Note 25 482D-484B. [Back] Note 26 (1964) 376 US 254. [Back]
Note 1 Duke of Brunswick v Harmer (1849) 14 QB 185. [Back]
Note 2 CPR 6.19 concerns service out of the jurisdiction where the permission of the court is not required. It has no application in this case. [Back]
Note 3 2nd statement, paragraph 8. [Back]
Note 4  AC 460. [Back]
Note 5 465F-G. [Back]
Note 6 474E-475C. [Back]
Note 7 481D-E. [Back]
Note 8  2 Ll LR 91. [Back]
Note 9 At p. 96. Cf Ackner LJ at 94. [Back]
Note 10  1 WLR 1004, 1014E. [Back]
Note 11 at 1032. [Back]
Note 12  EMLR 724. [Back]
Note 13 At 733. [Back]
Note 14  HCA 56. [Back]
Note 15 1012. [Back]
Note 16 Paragraph 39 is to be found in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ; paragraphs 181 and 192 are in the separate judgment of Callinan J. [Back]
Note 17 See Gutnick paragraphs 29 ff. [Back]
Note 18 Scoping Study No 2, December 2002. [Back]
Note 19 Paragraph 4.54. [Back]
Note 20 Collins, The Law of Defamation and the Internet (OUP), ch. 24 paragraph 24.52. [Back]
Note 21 465F-G. [Back]
Note 22 1021G. [Back]
Note 23  1 QB 391. [Back]
Note 24 488D-F. [Back]
Note 25 482D-484B. [Back]
Note 26 (1964) 376 US 254. [Back]