DAVID HOOPER ^*

Three recent English decisions, by Popplewell J in Berezovsky and
Glouchkov v. Forbes, ¹ by Morland J in Wyatt v. Forbes, ² and Popplewell J in
Parvinder Chadha v. Dow Jones ³ show that judges are becoming reluctant to
allow forum shopping by plaintiffs who seek to sue for libel foreign publica-
tions with limited circulation in the UK. (An appeal by Berezovsky and
Glouchkov was allowed in October 1998 after this article was written). ⁴
Wyatt did not appeal. The courts will not look sympathetically on libel
actions if neither the plaintiff nor the defendant has more than a tenuous
connection with this jurisdiction. A foreign media defendant would, however,
be unlikely to obtain a stay if the plaintiff were resident in England or if the
publication complained of had a significantly English flavour.

England has become notorious for forum shoppers. Plaintiffs take advan-
tage of the burden of proof being upon the defendants and the absence of
any need to prove actual damage. American plaintiffs benefit from the
absence of a Sullivan defence ⁵ under which a US plaintiff who is a public
figure will not succeed unless he can establish by clear and convincing
evidence that the defendant published the statement with knowledge of its
falsity or with reckless disregard of its truth or falsity. The decision in
Reynolds v. Times Newspapers Ltd, ⁶ enabling media defendants to raise a
defence of qualified privilege, does something to redress the balance in the
defendant's favour, but England is likely for the foreseeable future to remain
an attractive jurisdiction to plaintiffs. Libel is a unusual tort in that it may
occur simultaneously in a number of countries rather than there being simply
one tort with an argument as to which country should adjudicate the matter.
As publications become increasingly trans-national and likely to be pub-
lished around the world through electronic means and cyberspace, the poten-
tial for forum shopping is that much the greater. A forum-shopping plaintiff
may also have in mind tactical advantages, in that defendants are unlikely to

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