Donald Trump is a man who likes lawsuits, large numbers and discrediting established institutions. It is perhaps unsurprising therefore that over the past week he announced his intention to sue the BBC for $1bn (later $5bn) over the BBC Panorama documentary edit.
An overlooked point in the discourse so far has been Trump’s choice of jurisdiction. Rather than suing in the UK, Trump opted for the courts of Florida. As Prateek Swaika noted in his insightful piece on the lawsuit, this decision is key to understanding the litigation—Trump’s claim would be time barred in the UK, and UK courts in any event have never awarded more than £300,000 in damages and have far narrower disclosure obligations. Even with the advantages present in Florida, the question remains: does Trump have any chance of winning?
Out of the swamp
A very expensive trip for BBC executives to the sunshine state could be avoided via a stay of proceedings on forum non conveniens grounds.
Rule 1.061. of the Florida Civil Procedure Rules provides:
Grounds for Dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
Relevant considerations on these points include:
- A foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court (Poultry & Indus. Suppliers, Inc. v. Incubacol, S.A.S., 313 So. 3d 719, 722-23 (Fla. 3d DCA 2020)).
- There is a strong presumption in favour of the plaintiff’s original choice of forum (Kinney System, Inc. v. Continental Ins. Co. Supreme Court of Florida. January 25, 1996 674 So.2d 86).
- The foreign forum may be inadequate where the remedy it affords amounts to no remedy at all (Ira Mex, Inc. v. Southeastern Interior Const., Inc., App. 4 Dist., 777 So.2d 1107 (2001)). This raises potentially the greatest hurdle for the BBC, given that Trump’s claims would be time barred in the UK. However, there is a (potentially) neat solution for the BBC here. In Tazoev. Airbus S.A.S. 631 F.3d 1321 (11th Cir. 2011) the Court held that, as the defendant had agreed to waive the statute of limitations in foreign proceedings, the foreign jurisdiction was the more appropriate forum. The BBC could pull a similar trick: agree to waive the 1 year time bar in the UK and bring proceedings to the UK where the political (and economic) value of the case to Donald Trump is greatly reduced.
Brits in America
Even if Trump succeeds at the jurisdiction stage of proceedings, he may still be stuck with English law. Floridian courts apply the significant relationship test to decide on the choice of law for tort actions (Coulter v. ADT Sec. Servs., 744 F. App’x 615, 619 (11th Cir. 2018)) and generally consider:
- the place where the injury occurred;
- the place where the conduct causing the injury occurred;
- the domicile, residence, nationality, place of incorporation, and place of business of the parties; and
- the place where any relationship between the parties is centred.
(Restatement (Second) of Conflict of Laws § 145.)
Trump’s lawsuit is against the British Broadcasting Corporation, regarding a documentary that was not available in Florida, and that (at most) caused Trump reputational damage in the UK. It will ultimately be up to a Florida judge to decide this, but the most plausible reading is that English law – with its significantly lower damages – is more appropriate.
Conclusion
Trump’s claim against the BBC is political, rather than legal. The jurisdictional hurdles that Trump faces are most likely to result in the Florida proceedings becoming trapped in a procedural swamp with slim chances of any legal victory.
