Walter Tzvi Soriano v Forensic News LLC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 10 February 2023 |
| Neutral Citation | [2023] EWHC 262 (KB) |
| Docket Number | Case No: QB-2020-002450 |
| Court | King's Bench Division |
[2023] EWHC 262 (KB)
THE HONOURABLE Mr Justice Murray
Case No: QB-2020-002450
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Fulton KC and Mr Ben Hamer (instructed by Rechtschaffen Law) for the Applicant
The Lord Falconer of Thoroton and Mr Jonathan Price (instructed by Gibson, Dunn & Crutcher UK LLP) for the Respondents
Hearing date: 6 February 2023
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 10 February 2023 at 10:30 am.
This is an application by the claimant, Mr Walter Soriano, for an anti-suit injunction under section 37(1) of the Senior Courts Act 1981 against the first and second defendants, Forensic News LLC and Mr Scott Stedman, to restrain an application made in a court in the United States of America (“the US”) by the first and second defendants under 28 US Code §1782 (“the 1782 Application”).
28 US Code §1782 is a provision of the US Code under which a US court has the power to provide assistance to the applicant in gathering evidence in support of legal proceedings in a court or tribunal outside the US. Between January and November 2022, the defendants made three previous applications under 28 US Code §1782 seeking evidence from three individual witnesses. Mr Soriano has not formally objected to those applications, although he has raised objections to them in correspondence.
The 1782 Application was made on 6 December 2022 by the first and second defendants. Under the 1782 Application, they seek the permission of the US District Court in the Southern District of New York to issue a subpoena for the production of documents against HSBC Bank USA, N.A. (“HSBC USA”).
HSBC USA is a US subsidiary of the HSBC international banking group. Mr Soriano and the company of which he is the Chief Executive Officer (CEO), USG Security Limited (“USG”) have bank accounts with HSBC in London (“HSBC UK”). Mr Soriano asserts that neither he nor USG holds any account with HSBC USA, but he understands that US dollar payments to or from his and/or USG's bank accounts with HSBC UK will have cleared through HSBC USA as a correspondent bank. He expects that this will have generated records, but he has no idea of their nature and extent.
The third defendant is not a party to the 1782 application. There were a further three defendants to this claim by Mr Soriano, each of whom has since reached a settlement with Mr Soriano. In the remainder of this judgment, I will simply refer to the first and second defendants, who are the only respondents to Mr Soriano's application for injunctive relief.
The background to this litigation is set out in the Court of Appeal's decision on jurisdiction in these proceedings: neutral citation [2021] EWCA Civ 1952 at [2]–[10] (“ Soriano v Forensic News LLC (CA)”). For present purposes, it is sufficient to say the following:
i) Mr Soriano is a businessman with dual British and Israeli nationality.
ii) The first respondent is a Californian corporation that owns and operates Forensic News, a publication that features investigative journalism, which operates via a website, a Twitter account, a Facebook page, and podcasts.
iii) The second respondent is a journalist and founder of Forensic News. He is domiciled in the US.
iv) On 14 July 2020, Mr Soriano issued proceedings against the respondents (and, as already noted, others), for various causes of action in libel, misuse of private information, data protection, malicious falsehood, and harassment.
v) The claim concerned eight publications (namely, six journalistic reports, one podcast, and a published transcript of that podcast) that appeared on Forensic News outlets between 5 June 2019 and 16 June 2020 which, in the words of the Court of Appeal, “referred to the claimant in unflattering terms”.
vi) Given that all the defendants to the claim were domiciled in the US, Mr Soriano sought permission to serve the claim on the defendants outside the jurisdiction. On 15 January 2021, Jay J granted permission to Mr Soriano to serve outside the jurisdiction with respect to part of his claim only. Following an appeal by the defendants and cross-appeal by Mr Soriano, on 21 December 2021, the Court of Appeal in Soriano v Forensic News LLC (CA) dismissed the defendants' appeal and granted Mr Soriano's cross-appeal in part, the effect being that Mr Soriano had permission to serve the defendants in the US with his claims for libel, misuse of private information with respect to four photographs, and violation of his data protection rights.
On or around 10 and 11 January 2022, Mr Soriano served the respondents with a Re-Amended Claim Form and Particulars of Claim. The respondents filed their Defence on 16 March 2022.
In June 2022, Mr Soriano applied to the High Court for (i) a trial of preliminary issue in relation to the “natural and ordinary meaning(s)” of the alleged defamatory publications and whether the meanings found were defamatory at common law and (ii) an order striking out certain paragraphs of the Defence as unsupported, including their truth defence (“the Strike-out Application”). The current position is that the preliminary issue trial and the hearing of the Strike-out Application are listed together for 2 March 2023 with a time estimate of two days. Following this, it is expected that there will be a case management conference to determine directions, including timetable, to bring the matter to trial on the merits.
The 1782 Application
In support of the 1782 Application, the respondents filed a Declaration dated 6 December 2022 of Mr Patrick Doris, who is a solicitor and partner of the law firm, Gibson, Dunn & Crutcher UK LLP (“GDC-UK”), the respondents' solicitors. In the Declaration, Mr Doris stated that the documents the respondents are seeking from HSBC USA are potentially relevant to their defence of the libel claim in that they may corroborate the truth and/or accuracy of the disputed publications. This would support a truth defence and, in relation to accuracy, the respondents' defence to the data protection claim. Mr Doris also stated that the evidence sought was potentially relevant to Mr Soriano's credibility to the extent that he denies the truth of the disputed statements.
Mr Soriano complains that he was given no prior notice of the 1782 Application nor was he notified once it was made. He discovered that it had been made from an online source.
On 20 January 2023, the day after filing this application, Mr Soriano filed with the New York court a motion to intervene or stay, in opposition to the 1782 Application. His principal arguments in support of that motion are that: (i) the subpoena requests are unduly burdensome, (ii) the same information may be obtained from Mr Soriano himself, (iii) the 1782 Application is an attempt to “circumvent foreign proof gathering restrictions” of the English court because of the sheer breadth of the disclosure sought, which resembles a fishing expedition, and (iv) because any relevant information would be available through the normal disclosure process in the English proceedings. In relation to the 1782 Application, Mr Soriano is represented by the US law firm, Brown Rudnick LLP.
On 3 February 2023, the respondents filed with the New York court a reply brief in further support of the 1782 Application and in opposition to Mr Soriano's motion to intervene or stay.
The claimant's injunction application and the evidence filed by the parties
Mr Soriano applies to restrain by injunction the 1782 Application on the basis that the US proceedings initiated by that application would be unconscionable if they were allowed to proceed.
In support of his application, Mr Soriano has filed the sixth witness statement dated 19 January 2023 of Mr Shlomo Rechtschaffen, his solicitor, to which various documents are exhibited.
In support of their opposition to the application, the respondents have filed:
i) the fourth witness statement dated 1 February 2023 of Mr Doris, to which various documents are exhibited; and
ii) a witness statement dated 5 February 2023 of Ms Anne Marie Champion, to which various documents are exhibited.
Ms Champion is a partner in the law firm of Gibson, Dunn & Crutcher LLP (“GDC-US”). GDC-US represents the respondents in the US in relation to the 1782 Application. Her witness statement was provided to me during the hearing. I had the opportunity to read it during a short adjournment. In her witness statement, Ms Champion sets out the US legal context for the 1782 Application, describing the basic procedure, including as to scope of “discovery”, means of challenge of the scope of the subpoena sought under the 1782 Application, availability of a protective order to protect confidentiality of documents that may be produced by discovery, and other relevant points.
Relevant legal principles
Dreymoor Fertilisers Overseas PTE Limited v Eurochem Trading GmbH [2018] EWHC 2267 (Comm) at [59]–[69] is authority for the proposition that the jurisdiction to restrain a 1782 Application by injunction is well-established. That is common ground. The relevant test is unconscionability.
In South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien” NV [1987] 1 AC 24 (HL) at 41C-D, Lord Brandon of Oakbrook described “unconscionable conduct” for this purpose as “conduct which is oppressive or vexatious or which interferes with the due process of the court”. Although Lord Brandon stressed that this was not intended to be an exhaustive...
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Walter Tzvi Soriano v Forensic News LLC
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