Clause 9 - Action against a person not domiciled in the UK or a Member State etc
Defamation Bill
11:00 am
Paul Farrelly (Newcastle-under-Lyme, Labour)
I beg to move amendment 52, in clause 9, page 7, line 27, leave out ‘against a person who is not domiciled’ and insert
‘by a person or against a person neither of whom are domiciled.’.
Dai Havard (Merthyr Tydfil and Rhymney, Labour)
With this it will be convenient to discuss the following:
Amendment 53, in clause 9, page 7, line 32, at end insert—
‘(1A) This section also applies in an action for defamation where the court is satisfied that the words or matters complained of have been principally published outside the United Kingdom.’.
Amendment 54, in clause 9, page 7, line 37, at end insert
‘taking all relevant factors into consideration and having regard also to the extent of publication elsewhere.’.
Paul Farrelly (Newcastle-under-Lyme, Labour)
If you will allow me, Mr Havard, before I address each of the amendments I will make a short preamble on libel tourism so that I do not have to repeat those remarks and extend the stand part debate.
Paul Farrelly (Newcastle-under-Lyme, Labour)
I do not really need to go into the phenomenon known as libel tourism; it is succinctly summarised on pages 48 to 56 of the Culture, Media and Sport Committee’s report on press standards, privacy and libel, which was published in February 2010. I would like to make two overarching points, however.
First, many people, including members of the judiciary, have questioned the real extent of the problem. This point goes back to observations on other forms of journalism. The extent of the problem—the chilling effect, and the incentive that the law gives publishers not to publish, or to withdraw material, even where publication is in the public interest—cannot be measured by the number of cases alone.
Secondly, libel tourism is inextricably linked to the question of court practice. One of the most extreme cases of libel tourism, which has been mentioned before in the Committee, is Mardas v.New York Times. In the so-called Magic Alex case—I will not repeat the details—the Master of the court ruled that it was an abuse of jurisdiction for it to be heard in the UK, but the judge in the case overruled his Master. In our report, we are quite critical of that, but I think that we pull our punches with respect to the judge, Mr Justice Eady. We said:
“On balance, we believe there is sufficient evidence to show that the reputation of the UK is being damaged by overly flexible jurisdictional rules and their application by individual High Court judges, as exemplified by Mr Justice Eady in the Mardas and New York Times case.”
The argument that is often put in the High Court is, “If you disagree with my judgment, you can appeal.” However, appeals are expensive and sometimes time consuming, and that goes to the heart of the problem, which is the cost of defamation law. With respect to court practice, I draw the Minister’s attention to rule 6.36 of the civil procedure rules. He will see that it is extremely broad and that it gives no guidance, particularly on the extent of publication in the UK. The discretion is almost limitless, which is one of the reasons why we wanted the Government to follow the recommendation of the Joint Committee on the draft Bill that we consider the proposed changes to the civil procedure rules that would give effect to the intentions behind the Bill.
Just to conclude my preamble, the real issue is not just the number of cases in the past or their chilling effect but the reputational damage that has been done to the UK and our courts by some of the cases. Let me point out, as an example, the Rachel Ehrenfeld case, which led to the so-called Rachel’s law—not a campaign run by the News of the World but a law passed at New York state level followed by attempts at congressional level that would make UK libel decisions unenforceable in US courts. On reputational damage, I draw the Minister’s attention to the submission made by the Association of American Publishers to our Select Committee. It said that many of the publishers, some of the best names in journalism, made the comment that the libel courts here, with their attendant costs, were tantamount to a racket. It said that a small number of judges of first instance, with lawyers, often from the same chambers, were hearing cases that in its opinion, and our opinion, should never have been allowed to be brought. That submission is also referred to and described in our Select Committee report.
The amendments are probing amendments. Amendment 52 is there to capture the essence of libel tourism, which is where a foreign person or a foreign company brings an action in the UK against another foreign person or foreign company. For example, it is intended to capture the case of Rinat Akhmetov, a Ukrainian businessman, who sued a Ukrainian language website, Obozrevatel, here in the UK. It is also intended to capture the case of Iceland’s Kaupthing bank, which was allowed to sue a Danish newspaper, Ekstra Bladet, in the UK—and we all know what happened to Kaupthing along with the rest of the Icelandic banking industry. As the Minister will recognise, the amendment is intended to address the England and Wales issue. There has been some concern that the clause would make it harder for someone in England and Wales to sue in their own courts.
Amendment 53 captures circumstances in which publication occurs outside the United Kingdom. The case of Dr Peter Wilmshurst comes to mind. He was sued here by a US company, which has since gone out of business, over a report on a Canadian medical news wire and website about comments he had made at an academic conference in the United States. I hope that Dr Wilmshurst would be protected by other clauses in the Bill. Similar circumstances could extend to a UK politician criticising a US politician in the US, if a website carried a report and the US politician felt that he had a case to sue in the UK courts, although no substantial publication had occurred here.
With respect to substantial publication, the amendment seeks to include some recommendations by the Joint Committee on the draft Bill, which alluded to the good elements in the drafting of Lord Lester’s private Member’s Bill. The wording of amendment 53 mirrors some of Lord Lester’s drafting. Amendment 54 would have the same effect as amendment 53. Without amendment to the civil procedure rules, the Bill allows discretion to remain in the hands of judges, notwithstanding the explanatory notes. Amendment 54 makes explicit reference to the extent of publication elsewhere and how it needs to be considered.
In conclusion, I wish to draw the Minister’s attention to the importance of introducing amendments to the civil procedure rules before the Bill comes into force, so that we can judge the effect of the Bill before it completes its passage through Parliament, and in the instance of libel tourism, we need to look at the application of civil procedure rule 6.36 in particular.
Denis MacShane (Rotherham, Labour)
I support my hon. Friend. I hope that, in the general spirit of bipartisanship, the Minister is prepared to accept the amendments which substantially strengthen the Bill and would finally bury London’s reputation as a town called “Sue”, where people from outside the UK, with no connection to the UK, can bring a libel action. In this great international city—indeed, this multinational, multicultural country of ours—something can be read on the internet or perhaps a publication sent in by mail, so, technically, deemed to be available in the UK.
On the whole, British law should be for the health and protection of British citizens, not for oligarchs from anywhere in the world. It was not a problem until 20 years ago and the end of the communist world. Very rich people in other parts of the world have been advised that if they come to London, and only London, they can take action against people who irritate them. The Kaupthing bank case is a good example, because it was an attempt to kill the canary in the coal mine.
The Danish paper paid a little more attention perhaps than our Financial Times or The Economist to the appalling goings on in the Icelandic banking system, which were known on the island itself and to those who tracked Iceland. It referred to the fact that the bank was run by people who had no qualifications and who should not have been allowed to be bankers at all. Instead of alerting the world to the impending menace, which has caused devastating trouble, particularly for our many local authorities that invested with the bank, the opposite happened. That is to say that the London courts were used to try to shut down criticism. Is the Minister prepared to look at my hon. Friend’s amendment, so that we delete the phrase,
“against a person who is not domiciled”
in the UK, and replace it with
“by a person or against a person, neither of whom are domiciled”?
That seems quite a reasonable and modest extension to the wording of the Bill.
I strongly urge Members to support amendment 53, so that any action for defamation has to be about words that have been principally published inside the UK. One cannot just go on a huge trawl round the world. There are a lot of ugly websites and magazines. I do a lot of work in the Caucasian/Black Sea area, where journalistic ethics are pretty poor. People insult first, defame second and then think about checking their facts. These papers are not even owned by Rupert Murdoch or Lord Rothermere. None the less, I do not think that those quarrels, serious as they may be, should be transferrable to the English court system.
To read the editorial in The New York Times about how any American notion of press freedom was absolutely mocked by what happened in English courts, in the Ehrenfeld case in particular, was for me, both as a journalist and parliamentarian, deeply shaming. I do not know whether the Minister has to say that he is not going to accept this today, just pro rata. However, I invite him and his officials seriously to consider my hon. Friend’s amendments on Report.
Simon Hughes (Bermondsey and Old Southwark, Liberal Democrat)
I want to make a general point and a couple of quick specific ones in relation to the first two of the three amendments. In relation to asylum applications, for some years, the system has required an asylum seeker to apply in the first country they arrive in after they have left the country from which they seek asylum. There is an international arrangement that effectively determines what that is. The Home Office and its officials are allowed to say that it is not appropriate for an application to be brought here. For example, someone might have first arrived in France and therefore should be remitted to the French authorities.
I welcome the Government’s inclusion of this important clause. We need to deal with the abuse that has been long identified; bluntly, we were being used by people who did not really have an interest in coming here to use our courts. I am interested to hear from the Minister how this can be made to work in practice as efficiently as possible, effectively using the civil procedure rules to allow an initial inquiry to be made of the court, so that the court can quickly knock out a case with which it is inappropriate to deal here. That is what we ought to aim at. Does the Minister think there is civil co-ordination under the treaties referred to—the Lugano treaty and others—that could allow a quick reference? That might happen when the facts are given to a judge or a master here or someone at a preliminary hearing, who can say it obviously looks like a case that should be taken to the courts in Switzerland, Portugal or wherever, and therefore rules that that is the most appropriate jurisdiction.
Amendment 52 seems attractive, because it appears to govern both the claimant and the defendant, and requires a domicile link for either or both, rather than, as the Bill is currently drafted, only in relation to an action for defamation against a person who is not domiciled. I am interested to hear what the Minister has to say about what seems a sensible tightening of both ends of the action. The second amendment seems to suggest a reasonable test for the judge to apply at the initial hearing before the substantive one. With respect to the hon. Member for Newcastle-under-Lyme who tabled the amendments, the Minister might say that the third one is covered more clearly by the drafting. However, I will leave it to the Minister to respond to that.
Lastly, sweeping that up into a general conclusion, so far, the Minister has been helpful in Committee and has said that he is listening and is willing to continue the process of getting the legislation right—a process started with the draft Bill and the work of the Joint Committee—which is positive and constructive. The hon. Member for Stoke-on-Trent South has also been co-operative, as have my right hon. Friend the Member for Carshalton and Wallington and I. If we can tighten up the measure and improve it, we ought to do so. If there are technical problems with the amendments, everyone understands that, so I am not suggesting that my right hon. Friend and I leap in and stand behind the hon. Member for Newcastle-under-Lyme, saying, “This must be voted through now.” I hope, however, that the Minister can be sympathetic to the first two of the three amendments in the group and that he can talk to us a bit now or under clause stand part about the process for ensuring that as little time as possible is spent in our courts by a case that should be dealt with somewhere else.
Ben Gummer (Ipswich, Conservative)
I shall speak against the amendments. I have great respect for the hon. Member for Newcastle-under-Lyme and his deep knowledge and interest in this area, but I fundamentally disagree with the position that he and the right hon. Member for Rotherham are taking.
I do not understand why it is necessarily wrong that contracting parties or non-contracting parties who are not domiciled in the United Kingdom cannot use our courts for libel purposes. The issues raised by the hon. Gentleman and the right hon. Gentleman are problems with the decision of the court, as they see it, but not necessarily with the parties concerned. It is all right to bring up the example of Kaupthing, which might be reasonable in retrospect, but that was a problem with the decision of the court and not with what he sees as libel tourism. Had Kaupthing been a British bank and the newspaper British, the decision would no doubt have been the same and still erroneous in that instance, just as many court decisions in libel cases have been erroneous in retrospect and subsequently caused criminal prosecutions, because of perjuries committed during the prosecution of the libel cases.
Denis MacShane (Rotherham, Labour)
With respect to the hon. Gentleman, had it been a British bank and a British paper, the British paper would have been much better armed and much more ready to create public concern. Every British MP could have been alerted to the fact that a British bank was doing the monstrous things that Kaupthing has done. I do not see why British courts should come to the aid of a crooked Icelandic bank suing a Danish paper.
Ben Gummer (Ipswich, Conservative)
The right hon. Gentleman is the foremost proponent of the European Union in this House, so I find it an odd argument that the Danish press is any less good at defending its corner than our own, or any less good or less scrupulous at making its own case—in fact, in many instances, it is probably more scrupulous than many of our own newspapers.
It is my contention that, were those parties British and fighting the case in British courts, we would end up with the same decision. It would be no less different or erroneous than it was, so the argument of the Opposition Members is with the process, which is addressed elsewhere in the Bill.
Paul Farrelly (Newcastle-under-Lyme, Labour)
My problem is with both the courts and the plaintiffs, as well as with the lawyers who encourage forum shopping for the most favourable jurisdiction where the libel laws are most restrictive. That is the problem with lawyers, courts and plaintiffs. It is also a problem with costs, because so often such actions have led to non-publication or to settlements, as in the Kaupthing case, because of the sheer cost of defending them.
Ben Gummer (Ipswich, Conservative)
The hon. Gentleman is entirely right. I was not taking issue with his position but with that of the right hon. Member for Rotherham. The right hon. Gentleman was drawing from the example of one case a reason to change the law, and I thought that that was an erroneous association to make.
May I put a hypothetical situation to the hon. Member for Newcastle-under-Lyme for which his amendments would fail to provide a remedy? Let us say that, in the happy event that the murderous Assad regime is toppled, there is at some point in the next few years a general election in the absence of a fully developed jurisdiction for libel. Let us say that Press TV libels and defames one of the principal candidates during the election campaign; an interview or accusation is made which is covered partially in the United Kingdom, but is seen by many more people across the globe. The candidate’s only recourse for challenging that defamation—the most elegant and efficient way with backing from a supporting party—would be in the United Kingdom courts. If the amendments of the hon. Member for Newcastle-under-Lyme were accepted, that would be impossible.
Ben Gummer (Ipswich, Conservative)
I shall come on to that.
Looking at the unhappy examples that the hon. Member for Newcastle-under-Lyme has given, I completely understand why he would want to see reform both in law and in jurisdiction. However that could have unintended consequences and it is important that the Government respond, for this fundamental reason: the English courts are used around the world in commercial contracts. This is the largest centre for clearing commercial contracts in the world; in a similar vein, people who want to set up a commercial trust go to Delaware, which specialises in creating corporate trusts that work in the United States.
I think that that is a good thing for British courts. It creates an enormous amount of work for the City of London and helps oversight of our own corporate governance because it is such a big part of our jurisdiction. The Government are very much concerned with corporate law, not only for our own purposes, but for international reasons.
Andy Slaughter (Hammersmith, Labour)
The hon. Gentleman is making a good case, particularly as the Minister and the Lord Chancellor often promote British courts, even having suites of courts fitted out and air-conditioned for commercial disputes, attracting clients from around the world. However is there not a distinction between the quality of justice and the courts system here, and the deficiencies in libel law? It is the latter that has attracted libel tourism.
Ben Gummer (Ipswich, Conservative)
I agree—this is a happy moment—very much with the hon. Member for Hammersmith. I see no problem at all with offering London as a centre for international litigation on defamation, for parties who have got absolutely nothing to do with the United Kingdom, and in doing so I take issue with the Government’s position. I will not die in a ditch on it, but I do not see why we are closing off a position where we can offer a business centre to the rest of the world, especially as the global media have created more and more opportunities for newspapers to be read around the globe. The Daily Mail is the third most read newspaper website outside the United States. That will only continue, so it seems rather odd to create this insularity around our national media jurisdictions.
Simon Hughes (Bermondsey and Old Southwark, Liberal Democrat)
I am listening carefully to my hon. Friend. I understand his argument, but may I clarify something? He seems to be making two different arguments. First, if it is impossible for a case to be brought, such as in the Syrian example that he posited, it ought to be possible for somebody to come somewhere where they have a chance of bringing a case that they could not bring anywhere else. Secondly, we are a good place for these sorts of cases because of the business they bring. I am very sympathetic to the first proposal and wonder whether my hon. Friend thinks it is possible to amend the drafting of the measure—it would not be miles away from where it is—to accommodate it. The second proposition is quite a different one, which the Government have not so far adopted. Am I right in that analysis: he is arguing for two sorts of cases that ought to come here? Some of us may go with him part of the way, even if we do not go with him all the way.
Ben Gummer (Ipswich, Conservative)
Yes, that is a correct distinction, but there are many instances which should be excluded by the amendments. I have no particular problem with rather unattractive parties fighting defamation cases in the United Kingdom if the law itself can be improved to the point where they know that they will receive a fair hearing, that costs will not be extortionate and that, if they take on someone of little means, they are protected. Those are my key caveats.
Paul Farrelly (Newcastle-under-Lyme, Labour)
First, I assure the hon. Gentleman that the example he gives of Press TV would be unaffected by the amendments. Press TV is a UK-based organisation that used to hold a licence here, but I do not know what the current situation is. Secondly—and this is a fundamental point—the hon. Gentleman seeks to make London the tourist destination of choice for litigants. I and his right hon. Friend the Member for Bermondsey and Old Southwark probably disagree with making it a duty for the British tourism association to encourage such activity.
Ben Gummer (Ipswich, Conservative)
The hon. Gentleman may be entirely correct, but in the hypothetical world we could take “Russia Today”, or whatever Putin’s mouthpiece is called.
Ben Gummer (Ipswich, Conservative)
The right hon. Gentleman has a show, I believe.
The point still stands. We could end up with a situation in which we do not offer the excellent service that our courts can provide in such an instance. I have no problem with libel tourism if it drums up business for British courts, so long as people are protected in those courts, and there I have a slight difference with the Government. Perhaps the Minister will explain how, as the media become more and more global and international, drawing defined boundaries around us and the European Union will help to reform and modernise defamation law.
Dai Havard (Merthyr Tydfil and Rhymney, Labour)
I am looking at the clock and as general comments have been aired, I am minded to call the Minister to respond to the amendment, and then to ask for a formal stand part vote when we come to it.
Robert Flello (Stoke-on-Trent South, Labour)
I want to say a few words on stand part, not the amendment, if I may.
Helen Goodman (Bishop Auckland, Labour)
I have one question for the Minister, which would be part of a stand part debate. I understand that the issue is basically libel tourism, but the Minister did not address dog-legging when the claimant and author are both in the UK, but the website operator is in the overseas jurisdiction. I believe that this might be the place to sort out the problem. I would be grateful to hear whether the Minister had time over the weekend to think about that, and whether he will share his thoughts with us.
Robert Flello (Stoke-on-Trent South, Labour)
Clause 9, much like clause 6, is welcome. The intention is to deal with high-profile problems of libel tourism. It is widely held that current laws in England and Wales mean that claimants may bring a case here instead of abroad, and perhaps be more successful. I welcome the clause, but I have some concern about it. As it stands, it makes it clear that a court may hear a case only if it is
“satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”
I hope that the wording is clear enough to remove any ambiguity, and I hope that a reasonable judge would read it and consider it sensible to hear cases only when it is clear that publication was mainly in England and Wales. However, there are problems. It seems to cover only defendants who are resident outside the European Union, and the Lugano convention comes into play.
I will curtail what I was hoping to say, mainly because of the extensive but perhaps equally curtailed debate a few moments ago on the amendment. It is important to raise what others have said about the clause. The main point that struck me was that despite the talk of tackling libel tourism, the clause, if unamended, would not deal directly with libel tourism—that is, foreign plaintiffs coming to this country to sue because it is a better place for the case to be heard. It covers only libel kidnap when a plaintiff, foreign or not, seeks to serve an action out of jurisdiction on a non-EEA-domiciled person. So the clause would cover the case of Rachel Ehrenfeld, the US author who, if she were to be sued anywhere by the Saudi plaintiff, should have been sued in the US.
Although the clause is effective on libel kidnap, it cannot address libel tourism because it cannot directly restrict jurisdiction in cases where the defendant is domiciled in the EEA by virtue of the Brussels regulation and the Lugano convention, as set out in subsection (5). Libel tourism is best addressed through the statutory strike-out procedure, as I have proposed in new clause 8. I will not incur your wrath, Mr Havard, by straying into that new clause, but I hope we have the opportunity to discuss it this afternoon, should the time allow.
Dai Havard (Merthyr Tydfil and Rhymney, Labour)
Mr Farrelly? [ Interruption. ] Sorry, I forgot about the Minister.
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)
I have a little bit to say, Mr Havard.
The hon. Member for Newcastle-under-Lyme set out the potential for reputational damage and the cooling effect on free speech seen through the impact of libel tourism. He helpfully highlighted examples presented to the Joint Committee. These are probing amendments, but they raise a number of relevant issues, which I will address.
Amendments 52 and 53 address the types of case caught by clause 9’s provisions on libel tourism. Under the clause, for the court to have jurisdiction to hear an action against a defendant who is domiciled outside the UK, EU or a state that is a signatory to the Lugano convention, the court must first be satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring the action.
Amendment 52 would apply the new hurdle in clause 9 only in cases where both the claimant and the defendant are domiciled outside the UK, EU or a Lugano convention state. That would narrow the effect of the clause’s provisions on libel tourism because cases in which the claimant is domiciled in the UK, EU or a Lugano convention state would no longer be covered.
The Government currently do not consider that narrowing the clause’s scope is appropriate. Such narrowing would mean, for example, that a Russian oligarch domiciled in England or Wales might sue a person domiciled outside the UK in the English courts in circumstances where the alleged main harm to his reputation had occurred elsewhere. We consider it right that such cases should be caught by the test.
Where a claimant in a case in which the defendant is domiciled outside the UK, EU or Lugano convention state is unable to satisfy the court that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place to bring an action, he or she should be refused access to our courts and should be required to seek redress abroad.
Such cases are not likely to arise with any frequency, but when they do they give rise to legitimate concerns about libel tourism, which uses up the court’s time and resources. We do not believe that the requirement to show that England and Wales is clearly the most appropriate place to bring the claim will cause undue inconvenience to claimants domiciled here who legitimately wish to bring an action in this jurisdiction to protect their reputation.
In most cases where a claimant is domiciled in England and Wales, the clause 9 test is likely to be satisfied, as the main harm to their reputation will have been caused here. In such circumstances, the claimant will readily be able to show that this is the most appropriate place to bring the claim. In cases where the test cannot be satisfied, however, it is right that claimants domiciled here should not be able to use our courts to pursue libel actions that are more appropriately heard elsewhere.
Amendment 53 would extend the circumstances in which the provisions of clause 9 applied to a defamation action where the court was satisfied that the words or matters complained of had been principally published outside the UK. That would mean that, in all cases where the court considered that the principal publication had occurred outside the UK, the court would have to be satisfied that this is clearly the most appropriate place for the claim to proceed.
The amendment would be a substantial extension of the clause’s scope and would mean that, in every case where a defamation action was brought, the court would have to consider whether the allegedly defamatory material had also been published outside the UK and, if so, whether the principal publication had taken place here or elsewhere. How the court would decide whether the principal publication test had been satisfied is also unclear. If such a decision hinged on the extent of publication here, as opposed to elsewhere, that would omit a range of factors that may also be relevant, such as the extent of the claimant’s connection to the UK or his or her reputation here. That would add significantly to the evidence that the claimant would need to provide, and hence to the cost of the proceedings.
In addition, the amendment would mean that if the court decided that the words complained of had been published principally in France, for example, then unless the court was satisfied that England and Wales was none the less clearly the most appropriate place to bring the claim, the claimant could be prevented from doing so, notwithstanding the fact that the defendant was domiciled in this jurisdiction. That would conflict directly with the core principle in article 2 of the Brussels I regulation, under which the court generally has no discretion to refuse jurisdiction in cases where the defendant is domiciled in England and Wales. We must ensure that our law is compliant with European legislation, so we cannot accept the amendment.
Amendment 54 would require the court, in considering under clause 9(2) whether England and Wales is clearly the most appropriate place in which to bring an action, to take all relevant factors into consideration and to have regard to the extent of publication elsewhere. The Government do not believe that the amendment is necessary because in considering whether the clause 9 test is satisfied, the courts will naturally take all the relevant circumstances into account. In addition, we do not believe that it would be appropriate to single out a specific factor such as the extent of publication.
Extent of publication will, of course, be an important factor. However, the range of circumstances that the court may wish to consider are diverse, and the balance between them will depend on all the circumstances of the case. For example, in addition to the extent of publication, the court may also need to consider factors such as the extent of each party’s connection to England and Wales, the extent of the claimant’s reputation here and whether the claimant would receive a fair trial elsewhere. We do not consider it appropriate to give greater weight to a particular factor by including it in the Bill.
We also consider that, due to the diverse range of circumstances that may be relevant, it would be preferable to set out such factors in secondary legislation, where a more flexible approach can be taken. I have given an indication of some of the factors that would be relevant, and I can confirm to the hon. Member for Newcastle-under-Lyme that we will ask the Civil Procedure Rule Committee to consider a suitable list in due course, including the one identified by him. I say to my right hon. Friend the Member for Bermondsey and Old Southwark that we will consider how the rules can best support the new clause generally and will ensure that procedural guidelines are made available when it comes into effect.
I can tell my hon. Friend the Member for Ipswich that I have been active in encouraging companies to use English jurisdictional clauses, and we have the new commercial court. We want Britain to be a place where people do business—that includes signing their contracts and then disputing them—but that is different from being seen as the libel capital of the world based on defamation arbitrage and invalid concerns for our reputation as defenders of free speech. Very few cases go to court in any event. It is the cooling effect that is of most concern.
Simon Hughes (Bermondsey and Old Southwark, Liberal Democrat)
Will the Minister address the other point made by our hon. Friend the Member for Ipswich about cases such as the Syria example? I hope that we would be able to accommodate a claim in such cases, where there is no possibility of any such action being taken in the other country.
Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)
My hon. Friend asked why a case that can be brought elsewhere, such as in Syria, should not be heard here. There are a range of factors that the court will want to take into account in deciding whether the clause 9 test is met and whether the claimant would receive a fair trial elsewhere. That is one issue that the courts might want to consider.
The hon. Member for Bishop Auckland asked what the position is when an author in the UK brings a claim against a non-UK website operator. An action could still be brought against that website operator if the court were satisfied that the UK was the most appropriate place to bring a claim. On that basis, I ask that the amendments be withdrawn.
Paul Farrelly (Newcastle-under-Lyme, Labour)
With respect to the comments about using UK courts to settle disputes, I take that as not entirely tongue in cheek, but I understand that the Minister is a corporate finance lawyer by background standing up for his profession. The intention of the amendments, imperfect as they are, was to probe the Government’s intention behind the clause, which relates to the broad parameters of civil procedure rules. The issue takes us back to the operation of the courts and I want those rules to be tightened. I welcome the Minister’s intention to produce a list and I hope that we will see it before the Bill is enacted.
I am sure that the issue will come up again on Third Reading and in the other place, given the Joint Committee’s recommendations on the draft Bill and the wording in Lord Lester’s private Member’s Bill. At present, however, I beg to ask leave to withdraw the amendment.