Kotodama, your question about the Virginia connection is a good one–I haven’t looked into that at all. I agree with you that in a foreign defamation case where the defendant wins, there is no US public policy at play that turns on the difference between US defamation law and foreign defamation law. That’s why the SPEECH Act likely doesn’t apply here.

I think the bigger issue with the comity analysis is that it’s borderline (no comity pun!) incoherent. For one, the court just jumps into the substantive/procedural law comparison without ever explaining why that’s required. I suppose that could be based on the “public policy” factor, but if so, the court certainly never comes out and says that. And even if that’s truly part of the analysis, the court still flubs it. For example, it makes a big deal out of the fact that the UK and US substantive libel laws are different. Well, of course they are. But the court doesn’t explain why that by itself means no comity. The real question is, or at least should be, what is the nature of the difference and how is that difference relevant, if at all, to the comity decision? Here, the main substantive difference is that in the US, we have the 1A. But that just means the UK is a more plaintiff-friendly jurisdiction than the US. And if Depp couldn’t even get a verdict as a plaintiff in the UK, I don’t see how he’s prejudiced by recognizing the judgment in the US, which is less plaintiff-friendly. Or maybe the court was denying comity to protect a hypothetical defendant from recognition of a judgment in the UK where the plaintiff in fact won? Maybe, but I don’t know, since again the court didn’t say. I will grant the procedural differences are stronger, at least in a case like this where the plaintiff lost in the UK.

In the first-instance VA court’s partial defense, is it possible it doesn’t get all that many cases where it has to address the impact of a foreign judgment? Hopefully this can all get sorted out (no UK pun!) on appeal.

Also, I am just curious, what is Depp and/or Heard’s connection to VA exactly? I guess you could say in this case, VA is for estranged lovers!

Fair enough. I would not draw conclusions about the state of US law or the state of Virginia law from this first-instance decision. As I suggest in the post, the analysis is not strong, and I don’t think the court was really distinguishing clearly between (1) granting recognition but refusing to give preclusive effect for lack of mutuality or want of privity; and (2) denying recognition.

But this is discussed not in the context of the mutuality requirement, but in the context of comity. So it seems that, for the court, this is a requirement for granting comity…

Hmm, I’m not sure about that, Gilles. I think the court’s point, put into different language, is that even if the English judgment were recognized, it should not be given preclusive effect because of the lack of mutuality. I don’t think that’s a comment on the merits of the English judgment. The requirement of mutuality was traditionally a requirement for preclusion, and it appears from the decision that Virginia law continues to adhere to that rule.

That’s review on the merits, pure and simple.