Don King and Lennox Lewis went to battle in the UK Court of Appeal over the summer over libel allegations. The Court has made its judgement this week and the interesting point is that the court contends that in Net libel cases, publication takes place in the jurisdiction where the offending material is downloaded. This follows the basic ideas outlined in the Gutnick v Dow Jones case in Australia and indeed the Court of Appeal make a significant reference to Gutnick.

They do partly cover the area of "jurisdiction shopping" i.e the notion that the claimant looks around for the jurisdiction where they are likely to get the most favorable settlement. Their view as to the appropriate forum is that it should be a question for the judge, taking account of all the appropriate circumstances of the particular case. Their guiding reference on this point comes from a shipping dispute case, Spiliada Maritime Corp. v Cansulex Ltd.

With apologies to those of you who have difficulty with legalese, it is worth quoting the relevant extract from Lord Goff's decision in the Spiliada case:

"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… "

US commentators will likely be critical on free speech and most restrictive regime grounds but it's a thoughtful analysis of the issues, (even if I don't completely agree with it).