Судебная практика

I should like to add these comments. The principle which Ackner L.J. articulated in The Albaforth [1984] 2 Lloyd’s Rep. 91, 94 provides the starting point, but no more than the starting point, for a correct application of the Spiliada principles to the question whether the case is a proper one for service out of the jurisdiction under Ord. 11, r. 4(2). 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) L.R. 1 Ex.130; Shapira v. Ahronson [1999] E.M.L.R. 735; see also Eyre v. Nationwide News Proprietary Ltd. [1967] N.Z.L.R. 851. Common sense suggests that the more tenuous the connection with this country the harder it will be for the claim to survive the application of this rule.

One of the features of this case which I find most troublesome on the facts is the plaintiffs’ apparent lack of attention to detail as to the application to it of this rule. When challenged as to the relevance of a reference to the fact that Lockheed, a U.S. Corporation, had pulled out of a prospective deal with a Russian company with which Mr. Berezovsky was associated because of the Forbes article, counsel for the plaintiffs readily conceded that it would be an abuse for the plaintiffs to sue on matters which had occurred elsewhere and on the effects of any extra-territorial publication of the article. But many of the transactions referred to in the affidavits appear to be of this character. How is one to tell, in a case where the connections with England are so heavily dependent on the plaintiffs’ reputation in the minds of those representing foreign banks and institutions in their dealings with the Russian companies, that the loss of reputation in this country of which they complain is due to the effects of publication here as compared with the effects of the publication of the magazine in the countries where these banks and institutions have their principal offices? How is one, in such a case, to separate out the plaintiffs’ international reputation and the effects of the article on the transacting of business by the Russian companies internationally from the effects of the article on such reputation, if any, as they can claim to have in England? It would be a matter for regret if orders for service on publishers out of the jurisdiction were to be regarded as available on demand to those who have established international reputations by things said or done elsewhere, who have formed no long-standing or durable connections with this country by residence or by locating any of their businesses here and who are unable to demonstrate that the publication has had a material effect upon business or other transactions by them located only in this country. The interests of all the parties and the ends of justice would suggest that the case should be tried elsewhere.

Conclusion

I consider that the judge was entitled to conclude, on the evidence before him and upon a correct application of the principles described in the Spiliada case, that the plaintiffs had not been able to show that England was the most appropriate forum to try their actions. I do not think that the further evidence which was before the Court of Appeal justified a departure from the decision which he reached, and I also think that the Court of Appeal were in error when they said that the judge had erred in principle. I would allow the appeal and restore the orders which were made by Popplewell J.