English Court of Appeal
rules that English court is not forum conveniens for libel suit against Dow
Jones & Co. brought by U.S. residents where, inter alia, less than one
percent of Barron Magazine's sales takes place in United Kingdom
Dow Jones & Co., a New York corporation, publishes a weekly
financial journal known as "Barrons Magazine." The vast majority of
its coverage and advertising relates to the U.S. Of the 294,346 issues sold,
about 4/10 of 1% of the sales take place in the United Kingdom.
Chadha & Osicom Technologies Inc. (COT) is an electronics
company doing business in California. Mr. Chadha has a U.S. domicile and
residence. He founded the U.S. corporation in 1981 and has been its CEO since
that time. The company had a British subsidiary called (since April 1997)
Osicom U.K., Ltd. Though it still exists in Cardiff, Mr. Chadha had arranged
for its sale and it no longer has any links with either of the U.S. plaintiffs.
On August 25, 1997, Barrons published a defamatory article
alleging that COT and its CEO had taken part in fraudulent conduct. The latter
two sued Dow Jones in the English courts. The Master then gave them leave under
RSC, Ord. 11, r.4(2) to serve process abroad.
Upon review, the judge of the High Court of Justice saw the issue
as whether he should stay the proceedings on grounds that some court in the
United States would have jurisdiction over the case and would thus be the forum
conveniens. Finding an overwhelming case for trial in the United States, he set
aside the Master's order.
In the Court of Appeal, plaintiffs argued that the publication of
the libel in the U.K. constituted a distinct tort there and that only extreme
circumstances could justify the refusal to allow litigation in its courts.
Defendant contended, on the contrary, that any damage to plaintiffs'
reputations in the U.K. was de minimis, depriving its courts of being the forum
conveniens. The Court dismisses the appeal.
It first notes that plaintiffs have the burden of showing good
reasons why the English courts should allow service of a writ calling for the
appearance of a foreign defendant before an English court. In deciding this
question, the court has to take into account the nature of the controversy, the
legal and practical issues involved, along with such questions as local
knowledge, the availability of witnesses and their evidence and overall
expense. The basic search is for the jurisdiction in which the parties may best
try the case in their own interests and for the ends of justice.
In the appellate Court's view, the judge below had taken all the
relevant circumstances of the case into consideration. On the sound assumption
that an "English tort" had occurred, he evaluated the circumstances
pertinent to the forum conveniens doctrine. These included the personal status
of the corporate plaintiff and its connections with the U.K., the business
status of the individual plaintiff and his connections with the U.K., the
status of the defendants, the extent of publication, the nature of the
publication, the meanings that plaintiffs attached to the article and the
juridical advantages and disadvantages in having an English tribunal hear the
case as opposed to leaving plaintiffs to judicially vindicate their reputations
in the United States.
The Court also pointed out that plaintiffs clearly had reputations
worthy of vindication in the United States. On the other hand, the evidence
that they had a similar reputation in England in August 1997 is vague and
imprecise. For instance, this libel took place merely four months after
plaintiffs had changed the name of their English subsidiary to include the word
"Osicom."
Finally, there is no evidence in the record that any customer has
canceled an order with the company or its subsidiary because of the Barron's
article. In fact, plaintiffs' affidavits declared that the U.K. subsidiary is
continuing to grow.
Citation: Chadha & Osicom Technologies Inc.
v. Dow Jones & Co. Inc., [1999] I.L.Pr. 829, [1999] E.M.L.R. 724 (Ct. App.
(Civil) 1999).
**** Terik Hashmi is a business consultant serving businesses in the marketing realm. Among his clients are a medical service provider and an Online Reputation Management company. - Attorney Website at: https://terikhashmiattorney.com/ - Attorney Profile at: https://solomonlawguild.com/terik-hashmi%2C-esq# - Attorney News at https://attorneygazette.com/terik-hashmi%2C-consultant#eec97f53-49a0-4c94-869a-4847514cb694