Case Law: Kennedy v National Trust for Scotland: No pictures, please, Scotland versus England as a forum for defamation cases – Dan Tench, Emma Boffey, Graeme MacLeod and Jo Clark

18 06 2019

The Court of Appeal in England & Wales has handed down its judgment in the matter of Howard Kennedy v The National Trust for Scotland [2019] EWCA Civ 648, on appeal from the decision of Sir David Eady, sitting as a judge of the High Court on the Queen’s Bench Division Media and Communications List.

This decision is a rare creature: it considers the complex and under-developed area of jurisdiction of defamation claims, where the alleged damage is suffered across both Scotland and England. It adds significantly to the guidance available for claimants (or pursuers) on the most appropriate jurisdiction in which to pursue claims for defamation, where the damage suffered is pan-UK or worldwide. (The complexities of the case are perhaps reflected in that fact that it took the Court some nine months from the hearing to hand down the judgment.)

The background

Mr Kennedy, the claimant, is a photographer. In September 2012, he undertook a photoshoot at Craigievar Castle, which is located in Aberdeenshire. Craigievar Castle is owed by the defendant, the National Trust for Scotland (“the Trust”), it having been gifted to the Trust by Lord Sempill. The photoshoot included a series of nude photographs of a model, to be used for commercial purposes.

Subsequently, the nude photographs came to the attention of the daughter of Lord Sempill, who raised concerns over the use of the castle in the photoshoot. When the matter came to the attention of a journalist in 2016, the Trust provided a press release to various media outlets, denying that the taking of the photographs had been authorised.

Mr Kennedy claimed that the Trust’s press release was defamatory of him, was published negligently and was also in breach of the Trust’s statutory obligations under the Data Protection Act 1998 (“DPA”). Mr Kennedy raised proceedings in England seeking damages, including special damage for loss of business, as well as an injunction and other relief under section 14 of the DPA.

The forum: Scotland v England

The Trust raised an issue over jurisdiction in its pre-action correspondence with Mr Kennedy, arguing that England was not the appropriate jurisdiction for Mr Kennedy’s claim. The Trust asserted that Scotland, where the photoshoot had taken place and the Trust was domiciled, would be a more appropriate forum. In response, Mr Kennedy argued that the publications in which the press release appeared had a substantial English readership and he also had a substantial business following in England. Mr Kennedy also argued that there were a number of advantages to him if he could pursue the claim in England, including the possibility of higher damages, the availability of conditional fee arrangements, increased availability of “after the event” insurance and the avoidance of jury trials, which are still a feature of Scottish civil procedure.

Mr Kennedy’s claim form was issued in England & Wales on 24 February 2017, just prior to the one year defamation limitation period in England & Wales. The English Civil Procedures Rules (“CPR”) provide that the claim form must be served within six months of issue. At the point of expiry of this six month period, and when the Trust’s English solicitors indicated they were not instructed to accept service, attempts were made (on 23 August 2017) to serve the claim form upon the Trust by first class post at their registered office in Edinburgh. It was not in issue that the claim form was in fact received the next day, i.e. on 24 August, which was just within the six-month period. However, the CPR provided that the deemed period for service by first class post was two days, which would have taken it just outside that period.

At this point, the Trust made an application seeking orders that no valid service had taken place within the period and, alternatively, that the proceedings should be stayed on grounds that Scotland was a more appropriate forum for trial (forum non conveniens).

The decision at first instance

The High Court rejected the Trust’s argument on late service but agreed that it was appropriate to stay the proceedings on forum non conveniens grounds. Sir David Eady upheld the Trust’s arguments on this point, ruling that most of the connecting factors to the case indicated Scotland was the natural forum. Particular weight was placed by the court on the Trust’s domicile in Scotland and the ability of the Scottish courts to deal with the entirety of the claim (the court having reached the view that parts of the claim relating to damage in Scotland, Italy, France and Brazil would have had to be struck out from the English proceedings had they not been stayed).

The appeal

Mr Kennedy appealed, arguing that the availability of forum non conveniens arguments was restricted where the Brussels Recast Regulation 2012/2015 (“Regulation”) applied and, further, that judicial discretion under section 49 of the Civil Jurisdiction and Judgments Act 1982 was now heavily restricted, by virtue of the decision in Owusu v Jackson [2005] QB 801.

These arguments were rejected by the Court of Appeal. The court noted that while Scotland and England were separate jurisdictions, they were part of a single member state, the UK. This was not a case where a court of a Member State was declining to exercise a mandatory rule of jurisdiction under the Regulation. The Regulation would be satisfied irrespective of whether the claim was heard in England or Scotland. In these circumstances, the High Court was not precluded from applying internal forum non conveniens rules between England and Scotland and granting a stay. In considering how Sir David Eady had exercised his discretion in relation to the decision to stay, the Court of Appeal also made clear once again, that the test for unseating judicial discretion at first instance is a high one and the appeal court will not readily interfere in the absence of a significant error.

The Trust also cross appealed on the question of whether valid service was effected within the six-month period. This was also dismissed with the Court holding that the key date was when the claim form was actually received by the Trust, not the date it was deemed to be received under the CPR.

Comment:

The judgment is lengthy and detailed: it is a rare examination and test of the arguments which may be deployed by parties seeking to have a claim dealt with in Scotland or vice versa, in England, where damage is suffered across both jurisdictions. Here, the claimant demonstrated a clear preference to pursue his claim in England and has been thwarted by arguments of forum non conveniens in favour of Scotland.

It should be noted for the avoidance of doubt that the test here is the traditional forum non conveniens one

in Spiliada Maritime Corporation v. Cansulex Ltd [1987] 1 AC 460, i.e. that the court should retain jurisdiction of the claim unless it can be shown that there is an alternative jurisdiction in which the case may be tried more suitably for the interests of all the parties and for the ends of justice. This is distinct from the forum test provided for under section 9 of the Defamation Act 2013 in respect of claims brought against persons not domiciled in the UK or an EU Member State, where the claimant must show 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”.

The claimant’s preference to bring his action in England perhaps accords with an oft-held perception, that England is a more claimant-friendly jurisdiction for defamation claims than Scotland.

Whether that perception is rightly or wrongly held is a matter for debate. One aspect which would have been important here in which defamation law in Scotland is more favourable to claimants/pursuers is that the limitation period is currently three years rather than the one year in England & Wales. Moreover, after the reforms to defamation law in England & Wales brought about by the Defamation Act 2013, it is far from clear whether the law south of the border remains more favourable.

In that regard, those practising in the area will continue to await with interest the outcome of the Scottish Government’s consultation on reform to the Scots law of defamation, which is expected later this year. Meantime however, the decision in Howard Kennedy v The National Trust for Scotland [2019] EWCA Civ 648 serves as a useful reminder that jurisdictional arguments can be worth taking and that where a claim is closely connected with Scotland, but damage is also suffered in England, arguments of forum non conveniens may well succeed in the defamation arena.

Dan Tench, Emma Boffey, Graeme MacLeod and Jo Clark are solicitors at CMS

This post originally appeared on the CMS Law-Now website and is reproduced with permission and thanks


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