Court of Appeal confirms refusal of anti-suit injunction to restrain US s.1782 discovery application in libel proceedings

The Court of Appeal has upheld a decision refusing to grant an anti-suit injunction to restrain a US s.1782 discovery application seeking evidence in defence of libel proceedings in the English court: Soriano v Forensic News LLC [2023] EWCA Civ 223.

The Court of Appeal's decision shows that, while the court may grant an injunction restraining a party from pursuing foreign proceedings where that party's conduct is (or would be) unconscionable, the court will not generally do so merely to prevent a party seeking to gather documentary evidence in a lawful manner abroad - even if the foreign court may order disclosure on a broader basis than the English court would do. The principles are the same in this regard in a libel case as in any other.

Background

The High Court refused to grant the claimant's s.1782 application, finding that it did not amount to conduct which was oppressive or vexatious or which interfered with the due process of the court (applying South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien” NV [1987] 1 AC 24). The High Court's decision is considered in our previous blog post here.

The claimant appealed on various grounds including that the s.1782 application was an inherently abusive fishing expedition which sought to circumvent English disclosure rules in general, and in particular the principle established in Yorkshire Provident Life Assurance Co v Gilbert [1895] 2 QB 148 that the defendant to a libel action was only entitled to discovery “of all matters relating to the questions in issue as narrowed by the particulars”.

Decision

The Court of Appeal (Sir Geoffrey Vos MR, Lady Justice Carr and Lord Justice Warby) dismissed the appeal.

The court noted that the judge in this case had to determine whether, in all the circumstances, the s.1782 application was unconscionable, abusive or vexatious on one of several grounds including specifically whether it would interfere with the proper conduct of the proceedings. He decided that it was not, and the Court of Appeal would always be slow to interfere with such a factual assessment unless the judge had made a legal error.

The Court of Appeal found that the judge had not fallen into error, for a number of reasons:

1. The decisions in Yorkshire Provident and related cases say nothing about evidence gathering. They go to the narrower question of what disclosure is available in libel actions in support of a defence of truth.
2. The breadth of the s.1782 application was primarily a matter for the US court. It was clear from relevant US authority that the s.1782 procedure is aimed at assisting the foreign court, and the US court may take into account the nature of the foreign tribunal, the character of the proceedings, and the receptivity of the foreign to US court assistance. Unduly intrusive or burdensome requests could be rejected or trimmed by the US court, and appropriate measures taken to protect confidentiality.
3. There was nothing inherently objectionable from the English court's perspective about seeking evidence, in an appropriate case, from the bankers of a party or of the corporate entities in which it has an interest.
4. The cases on which the claimant relied to support a general principle prohibiting “fishing expeditions” related to the scope of disclosure available in an English libel action. They did not purport to restrict a defendant’s lawful evidence gathering activities more generally. Indeed, citing McDonald’s Corp v Steel [1995] EMLR 527, the court noted that the general rule is that the defences of truth and honest opinion “form part of the framework by which free speech is protected. It is therefore important that no unnecessary barriers to the use of these defences are erected”.
5. The judge had considered all the relevant facts before concluding that the s.1782 application was not “oppressive, vexatious or otherwise unconscionable”.