Posts Tagged [2017] EWHC 3368 (QB)

Kennedy v National Trust for Scotland. Applying forum non conveniens within the UK. And how to make a case ‘international’.

Update 12 June 2019 various reports refer to Kennedy v National Trust for Scotland [2019] EWCA Civ 648 as having confirmed the High Court approach. Text of judgment is not available publicly, once it is I shall be able to review the Court of Appeal’s reasoning on Brussels Ia. The case was used as authority in [2019] EWHC 1469 (QB) Advertising Standards Authority v Mitchell: jurisdiction for interim relief prohibiting disclosure of privileged legal advice following documents inadvertently sent to the wrong e-mail address.

In [2017] EWHC 3368 (QB) Kennedy v National Trust for Scotland, Eady J considers two important (for this blog at least) issues leading to dicta: when a prima facie domestic case may turn out to be international really; and following his ruling on same, the application of forum non conveniens intra-UK. I reviewed the latter issue, also intra-UK, in my analysis of Cook & McNeil (v Virgin & Tesco).

First the issue of the case being purely domestic or international. It is only when it is the latter, that the Brussels I Recast regime is engaged and, per Owusu, forum non conveniens excluded.

The Claimant, who is domiciled in Scotland, seeks damages and other remedies in this jurisdiction against the National Trust for Scotland in respect of a number of allegations published in both jurisdictions as well as in Italy, France and Brazil. He relies not only on defamation but also on negligence and on alleged breaches of the Data Protection Act 1998. The dispute arises over the Claimant’s attendance at Craigievar Castle in Aberdeenshire on 23 February 2012, when he took a series of photographs of a naked model for commercial purposes. He claims that he did so pursuant to an oral contract, entered into with a representative of the Defendant, which expressly authorised that activity. Some years later, this episode came to the attention of the daughter of Lord Sempill who had gifted the castle to the Defendant (more than 50 years ago) and she protested that it had been used for the purpose of taking nude photographs. Her remarks caught the attention of a journalist who made enquiries and was given a statement by or on behalf of the Defendant on 24 February 2016 which was reported in the Scottish Mail on Sunday of 28 February. Thereafter, the Defendant also issued a press release which denied that the taking of the photographs had been authorised. This was sent to a number of media outlets including a reporter on the (London) Metro newspaper.

Claimant suggests that this is not “a purely domestic case” by referring to re-publication of the defamatory words in France and Italy. At 51 Eady J, with reference to the aforementioned Cook v Virgin Media, suggests the purpose of the regulation, and of the rule of general jurisdiction in particular, is to regularise issues of jurisdiction as between different states, and that no such question arises here, because the only potential competition is between the courts of Scotland and England & Wales (i.e. internal to the United Kingdom). I do not think this is the effect of CJEU precedent, Lindner in particular, as well as Maletic and Vinyls Italia (the latter re Rome I). The potential competition between the England and Scotland only arises if, not because, the Brussels I Regulation does not apply: the High Court’s argument is circular. In Linder and in Maletic, the CJEU upheld the application of Brussels I even though competing jurisdiction elsewhere in the EU was only potential, not actual. Given the potential for jurisdiction with courts in France and Italy, I would suggest the Lindner logic applies.

Eady J though applies forum non conveniens to establish Scotland as the more appropriate forum in the UK, and to stay the English case.

He then obiter (had FNC not applied), at 86 ff suggests the court develop a novel sub-national model of Shevill, such that only courts of the sub-national place where the publisher is domiciled would have jurisdiction to award global damages – and all other courts within the United Kingdom would be restricted to awarding damages for harm occurring within their relevant regions. Importantly, even for post-Brexit use, Eady J suggest the importation of CJEU case-law in applying English law of conflicts is appropriate for Parliament has approved rules in parallel to those under the Recast Regulation.

A little gem of a judgment.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.1.

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Away to Scotland with thee! CA applies forum non conveniens to intra-UK conflicts in Cook & McNeil (v Virgin & Tesco)

A great example of internal forum shopping and the application of forum non conveniens in the Court of Appeal. (Just before Christmas. I am still hacking away at my end-of-year queue).

Claimants claim damages for personal injuries they alleged they sustained in accidents in Scotland as a result of the negligence and/or breach of statutory duty of the defendants. The claims were issued in the Northampton County Court. The registered offices of the defendants are situated in England and Wales. Both claimants are domiciled in Scotland. Liability has been admitted in the case of Cook, but denied in the case of McNeil.  Since the claims related to accidents in Scotland, the claims were allocated to Carlisle County Court, which is the court geographically closest to Scotland. The claims were struck out on forum non conveniens grounds, with Scotland being the appropriate forum.

The most important issue that arises on these appeals (and the reason why Tomlinson LJ gave permission for a second appeal) is whether the doctrine of forum non conveniens can apply in a purely domestic context where the competing jurisdictions are England and Scotland. Put simply, the question is: does the English court have the power in such a case to stay or strike out a claim on the ground that the natural and more appropriate forum is Scotland?

As Floyd MR notes (at 7) it is surprising that there was no authority on this point.

He correctly holds that the ‘international element’ required for the Brussels I regime to apply, as it did in Owusu and Maletic  (but also Lindner) is absent in the case at issue. There is nothing in the facts which renders the case international in the Brussels I (Recast) sense.  Relevant precedent which did have some calling was Kleinwort Benson, Case C-346/93, in which the CJEU refused to interpret the (then) Brussels Convention in a purely domestic UK situation, even if the internal UK rules were modelled on the Brussels regime.

Forum non conveniens could be applied. Though not under appeal, Floyd MR does suggest that in his view the claim in which liability was admitted (Cook), should not have been struck out but rather stayed under the relevant rules.

Geert.

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