Defamatory? No, derisory
Allen Green: A recent judgment could be a significant strike against libel tourism
18 Nov 09

The English High Court has robustly rejected an attempt at “libel tourism” by striking the case out for abuse of process. In doing so, the judge went so far as to criticise the original application by the English solicitors to serve the claim outside the English jurisdiction.
Mr Justice Tugendhat, the other judge besides Mr Justice Eady to regularly hear libel cases, has handed down a highly critical judgment showing that it is possible for the courts themselves to prevent the abuse of libel tourism.

In Lomzin and others v Sprague, the claimant — an Isle of Man company and two of its directors — sought to rely on the internet publication of a South African newspaper in England so as to bring a libel claim. As the claimant company is listed on the London Alternative Investment Market there was no issue as to whether there was an applicable reputation in England.

The key issue was whether there was publication of the libel in England. In making the application to serve the defendant in South Africa, the claimants’ solicitor had asserted that there was significant publication. As Mr Justice Tugendhat noted, “an application for permission to serve out of the jurisdiction is a serious matter”. In fact, it transpired that no real investigation had occurred.
It was left to the defendant, businessman Andrew Sprague, to put evidence to the court that the story on the newspaper’s website had only had 65 hits altogether, none of which could be shown to have come from the United Kingdom. As the website as whole received around 7 per cent of its traffic from the United Kingdom, then the judge noted that there were perhaps six hits, all of which could have come from the same person.

The judge then observed that even if there were evidence of traffic from the United Kingdom, this did not equate to publication in England itself: after all, Edinburgh is also a financial centre and Scotland is a separate jurisdiction. The judge also dismissed the attempt by the claimants to rely on Google alerts being delivered to English email addresses containing links to the story, for this was not any evidence that those links were clicked.

The judge emphasised that it was for the claimants in a libel action to demonstrate publication in England; it was not enough to show that the story was accessible in England on the internet. As the claimants could not evidence significant publication in England, the claim was struck out; indeed, there should not even have been permission for the claim to be served in South Africa in the first place.

In coming to his decision the judge cited the Human Rights Act and the need for proportionality in the use of the court’s resources in dealing with libel claims. These factors have not often been mentioned in other libel cases where there has been libel tourism.
The judge was also unimpressed by the clear evidence that that the claim was not in reality being brought to vindicate reputation. Whilst stating he had struck the case out for other reasons, the judge made a point of quoting one of the claimants emails to the defendant: “…I will nail you to the corporate cross…I will stomp your corporate head”

Allen Green is writer of the blog Jack of Kent