QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BUZZFEED INC and another
- and –
|ALEKSEJ GUBAREV and others
- and –
Hannah Brown QC (instructed by W Legal) for the First Respondents
Gavin Millar QC and Edward Craven (instructed by RPC) for the Second Respondent
Julian Blake (instructed by GLD) for the FCO (as intervenor)
Hearing date: 14th May 2018
Crown Copyright ©
MR JUSTICE JAY:
(1) BuzzFeed Inc and Ben Smith, who are the defendants in proceedings for defamation brought in the United States District Court for the Southern District of Florida (Miami Division) ("the Florida Court"). Although they are the Appellants/Applicants in the proceedings before me, I will describe them as "the US Defendants".
(2) Aleksej Gubarev, XBT Holdings SA and Webzilla Inc, who are the plaintiffs in the defamation proceedings and the First Respondents to this appeal/application. They take a neutral position before me. I will describe them as "the US Plaintiffs".
(3) Christopher Steele, who is the subject of a Letter of Request from the Florida Court issued on 10th August 2018 at the instance of the US Plaintiffs and formally directed to the Senior Master of the Queen's Bench Division. It is said that he can give relevant evidence by way of oral examination in this jurisdiction pursuant to section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975. He is the Second Respondent to this appeal and has actively opposed it. I will describe him as "Mr Steele".
Essential Factual Background
"Now BuzzFeed News is publishing the full document [hyperlinked] so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of government."
"How [Mr Steele] came to make the allegations in the December memorandum/whether the allegations were verified. This evidence will go to whether the allegations are true [items 4-6 and 8 of the Schedule on the original numbering]"
and, according to paragraph 26(iv)(3):
"the circumstances of the provision of the dossier to various parties identified in [items 11-13] including whether cautions were given to such parties about the unverified nature of the allegations in the dossier and warnings were given not to publish the same without independent verification. This evidence will go to the lack of care exhibited by BuzzFeed."
"Further, the Defendants are entitled, in the Florida proceedings, to defend themselves based on their decision to publish the whole dossier as opposed solely to paragraph 3 of [the December memorandum]. Although the parties dispute whether New York or Florida substantive law applies to the Florida proceedings, under either body of the law relevant issues will include: (a) whether the publication of the dossier is a fair and true report of an official proceeding, see [relevant authority] …; (b) whether the Defendants acted with "actual malice", gross irresponsibility, or negligence in publishing the dossier, see [relevant authority] …; and (c) whether the publication of the dossier as a whole is protected by neutral reportage, see [relevant authority]"
The Judgment of the Senior Master
"No explanation has been advanced by the US Plaintiffs as to why they sought the topics for examination to extend so far beyond what would generally be expected for such proceedings, and they have not sought to explain why there was no attempt to demonstrate the relevance of each area of questioning in the Request, and the original formulation of Schedule A, to the issues in the case. The US Defendants, although they did not apply for the Request, and say they are neutral as to whether it be set aside or not, still seek to maintain part of the examination extending to the entirety of the dossier, in circumstances where there is no suggestion that Mr Steele had anything to do with their decision to publish the same."
The US Defendants have not pleaded in the Florida proceedings that they relied on anything Mr Steele told them.
Topics 4, 5 and 6
"I consider that topics 4, 5 and 6 should be deleted. The US Plaintiffs have focused on the issue of Mr Steele's verification of the allegedly defamatory statements in paragraph 3 of the December memorandum, which is the subject of paragraph 8, and the US Defendants on the reasons and justification for publication. There has been no satisfactory explanation as to why these topics are relevant to the issues identified. These areas of questioning … would … be likely to risk identification of sources through the 'jigsaw effect' identified by Mr Millar in his submissions. Although the order can include a prohibition on questions that will risk identity of the sources, there is likely to be considerable difference of opinion between the parties' representatives as to whether any particular question would fall into that category … and it would be unfair and oppressive for Mr Steele to be put into that position."
Topics 11, 12 and 13
"I consider that these topics should be limited as proposed by the US Plaintiffs, I do not consider that in that form they are oppressive to Mr Steele. This information is partly given by Mr Steele in his defence in the QB proceedings. In that regard I note the evidence of Mr Loble that the parties are unable to rely on the QB statements of case in the Florida proceedings. The topics concern evidence which appears to be in the public domain so far as media outlets are concerned, and the examination on these topics is likely to be very limited in scope. The topics are clear, limited and easily identifiable, and the issues as to distribution of the December memorandum are relevant to the issues pleaded in the defence in the Florida proceedings."
The Submissions for the US Defendants
Discussion and Conclusions
"It is not a de novo rehearing of the matters placed before her. In this regard, before interfering with the Senior Master's decision, it must be shown that she had either erred in principle in her approach or has left out of account or has taken into account some feature that she should, or should not, have considered or that her decision was wholly wrong because the court is forced to come to the conclusion that she has not balanced the various factors fairly in the scale …"
These considerations carry much greater weight in relation to Mr Bailin's submissions grouped under the rubric of oppression than to his submissions under the banner of relevance. The former raise discretionary considerations; as for the latter, points of principle may well arise, although the Senior Master in my view should be accorded an appropriate margin of appreciation as regards matters of evaluative judgment.
"It would be quite inappropriate, even if it were possible, for this House or any English court to determine in advance the matters relevant to the issues before the Californian courts on which each of these witnesses is in a position to give evidence." [page 1165B-C]
"… because there is no evidence in those court documents that she has done so, and neither of the parties to the Florida proceedings sought to suggest otherwise. Further, it appears that much of the evidence sought in the topics for examination is not in fact relevant to the issues in the US proceedings …" 
"… orders for letters of request are normally made by the US judge without any real scrutiny. The order is normally made in the terms sought by the applicant without any (or any significant) amendment and without the judge being informed of the significant differences between US federal procedure and of these courts."
I apprehend that this conclusion was based on Stanley Burnton J's considerable experience in this area of the law.
"It seems to me, however, that [Counsel] is correct in his submission that the approach of the court will depend on whether the requesting court has itself considered questions of relevance. If it has, then it is hardly in the interests of comity that the court to whom the request is made should embark on a close consideration of questions of relevance on what is likely to be limited material and a less clear understanding of the issues than the requesting court. If, on the other hand, the requesting court has plainly not considered the question of relevance or it is clear, even on a broad examination, that the evidence is not relevant then the Vice-Chancellor's first question must be addressed."