Citation[]
Lewis v. King, [2004] EWCA Civ 1329 (full-text).
Factual Background[]
Boxing promoter Don King used to manage British fighter Lennox Lewis, but at some point, their relationship turned so sour that they were involved in litigation against one another in the United States and Great Britain. Indeed, their legal battles became so ferocious that Lewis’ lawyer, Judd Berstein, got sucked into one case personally, as a named defendant.
The case in which King sued Berstein personally, as well as Lewis, was a libel lawsuit King filed in Great Britain. King eventually settled that case against Lewis, but not against Berstein.
King's chosen forum was remarkable in one respect: King and Berstein both are U.S. citizens and residents, and Berstein’s offending statements were posted to websites located in the United Ststes. Those statements were published in Great Britain, only in the sense that the websites on which they appeared could be viewed by readers in Great Britain, and apparently were.
Berstein suspected (not illogically) that King chose to sue him for libel in Great Britain, rather than in the United States, because under American law, King would have the burden of proving that Berstein’s statements were false, and that he made them knowing they were false or with reckless disregard for the truth (actual malice). Under British law, by contrast, Berstein would have the burden of proving that his statements were true. In other words, King would have a much easier time winning his case in Britain than in the United States.
Trial Court Proceedings[]
In order to pursue his case in a British court, King needed a court order authorizing him to serve his claim (what in the U.S. would be called a summons and complaint) on Berstein outside of Britain, namely, in the United States, because that is where Berstein lives and works. King applied for and got such an order from a British Master, and the order was affirmed by Mr. Justice Eady of the Queen’s Bench Division (a trial court).
Appellate Court Proceedings[]
Berstein appealed again, but without success. The UK Court of Appeal had "dismissed" his appeal, thereby affirming the order that allowed King to serve his claim on Berstein in New York, so the case may proceed in London. As a legal matter, the issue before the Court of Appeal was whether the British court was the "appropriate forum" for King's lawsuit against Berstein. Berstein, of course, argued that an American court was the appropriate forum, not a British court.
Berstein argued that Justice Eady had committed a legal error when he decided that the British court was appropriate. The mistake, Berstein said, was that Justice Eady had decided that since King's case would not “survive” under American law, the United States was not an appropriate forum. If, in fact, Justice Eady had based his decision on the fact that British law was more favorable for King than American law, that would have been an error. Favorable law is not an accepted reason for finding one forum, rather than another, to be "appropriate."
However, the Court of Appeal found that King had not asked Justice Eady to consider the advantages of British law over American law, and Justice Eady had not actually done so. Instead, the record showed that Berstein himself had argued that King decided to sue in Britain, rather than the United States, because King's claim would not survive in an American court. And King responded by arguing that it was "entirely illogical" for Berstein to argue that an American court was a more appropriate forum for King's case precisely because King would get no relief there.
The Court of Appeal found, however, that Justice Eady had not relied on King's argument. He merely took "notice" of the "irony" of Berstein's argument. And then Justice Eady based his decision on relevant factors: under British law, a libel occurs in the U.K. if a libelous statement is posted on the Internet and is read in the U.K.; and King has a reputation in the U.K. that was allegedly injured by Berstein's statements.