Howard Kennedy v The National Trust for Scotland [2017] EWHC 3368 (QB): The Application Of The Doctrine Of Forum Non Conveniens To Disputes Wholly Internal To The UK.

This post has been contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.

 

Judges GavelIn its judgment on Howard Kennedy v The National Trust for Scotland [2017] EWHC 3368 (QB), the High Court considered, amongst others, an issue relating to the application of the principle of forum non conveniens in situations where the courts involved are internal to the UK.

The dispute arose when Howard Kennedy, a photographer domiciled in Scotland, took photographs, for commercial use, of a naked model on the grounds of Craigievar Castle in 2012. The castle, located in Aberdeenshire, Scotland, was a gift by Lord Sempill to the National Trust for Scotland (NTS). According to Mr. Kennedy, permission for the shoot had been orally obtained by a representative of the NTS and a payment of £200 was made for the use of the building. Very importantly, the specific nature of the shoot was known to the NTS, something evidenced by the fact that the session was supervised by at least one female member of staff, either in person or through CCTV.

In 2016, the daughter of Lord Sempill became aware of the situation and subsequently objected to the fact that the grounds of the castle had been used for the purpose of taking nude photographs. What followed was a statement by the NTS denying that the photo-shoot had been authorized. The statement in question was published online and offline in various media outlets in both England and Scotland and online in Italy, France and Brazil (in the respective languages of those countries).

Mr. Kennedy initiated proceedings against the NTS at the High Court in London, seeking damages for libel, negligent misstatement, and breach of the Data Protection Act 1998.

The issues of interest from a conflict of laws point of view arising from this case were: a) whether the forum non conveniens discretion was precluded as per Owusu v Jackson (C-281/2002), b) If that was not the case, whether a stay could be granted on the basis that Scotland was the “clearly more appropriate” forum and c) if the case was to be heard in England and Wales, whether the English court would have jurisdiction to award global damages.

According to Mr. Kennedy, the court was precluded from considering forum non conveniens issues, based on Owusu v Jackson (C-281/2002) and Maletic v lastminute.com GmbH (C-478-12)). His argument was that the case was not “purely domestic” because the republication of the statement denying the authorization of the photo-shoot took place both in the UK and in states other than the UK.  As such, jurisdiction should be governed by the Brussels Regulation (recast), which precludes the discretion of the English Court to stay the claim on grounds of forum non conveniens. The court did not entertain this argument because both Mr. Kennedy and the NTS were domiciled in the UK. As such the only jurisdictional competition was between the courts of Scotland and England and Wales. The case was “purely domestic”, as the republication of the statement by third parties outside of the UK was insufficient for the purposes of introducing an “international element”. The Court concluded that the only rival jurisdictions were those internal to the UK. The Brussels Regulation (recast), therefore, did not apply and the matter fell within the ambit of the Civil Jurisdiction and Judgments Act 1982.

On the basis of the above, the Court considered whether to stay the proceedings under section 49 of the Civil Jurisdiction and Judgments Act 1982. It found that, as the factual dispute including witnesses and documents were in Scotland, the latter was clearly the more appropriate jurisdiction for resolving the issues, in the interests of all the parties and the ends of justice.

In respect of the question of whether, if the claim were to go ahead in England and Wales, the recovery of global damages would be available, the Court found that the rule in Shevill v Press Alliance  [1995] 2 AC 18 (CJEU) should apply. Accordingly, where a libel is published in more than one jurisdiction in the UK, the claimant is given the choice of initiating an action where the defendant is domiciled where all relevant damages can be recovered, or doing so in each of the jurisdictions where harm is alleged to have incurred and recovering the damages for the harm incurred in each jurisdiction individually. Therefore, in this case the English court would have no jurisdiction to award global damages.

This decision provides an interesting insight of the thinking of the court when it comes to the consideration of the application of the Brussels Regulation (recast) in defamation cases, where there is online publication in a number of jurisdictions. Third-party publications in jurisdictions outside of the UK do not introduce an international element and are, as such, insufficient for the purposes of bringing the Brussels Regulation (recast) in play.

 

The text of the decision can be found at:

http://www.bailii.org/ew/cases/EWHC/QB/2017/3368.html

 

 

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