Full case report
Kennedy v National Trust for Scotland
Reference  EWHC 3368 (QB)
Court High Court (QB)
Judge Sir David Eady
Date of Judgment 17 Jan 2018
Libel – Data Protection Act 1998 – Negligent Misstatement – forum non conveniens – Scotland – Owusu v Jackson – Service within the Jurisdiction – Deemed Service – Validity of the Claim Form
In 2012, C – a photographer domiciled in Scotland – had taken photographs of a nude model at a Scottish castle owned by D, also domiciled in Scotland. In February 2016, D issued a press statement in response to a media enquiry to the effect that it had not permitted the photoshoot. C said he had an oral contract to conduct the photoshoot, supervised by D’s staff on-site, and could prove a payment by cheque of £200 consideration.
The press statement was published online and offline in major media outlets in both England and Scotland. It was also published online in Italy (in Italian), in France (in French) and in Brazil (in Portuguese).
C issued proceedings at the High Court in London, for libel, negligent misstatement, and breach of the Data Protection Act 1998 (“DPA”), including the 8th data protection principle (transfer of data outside of the European Economic Area, namely Brazil).
The claim form was issued on 24 February 2017, posted on 23 August 2017, and received on 24 August 2017. Service in Scotland is as-of-right (no need for the Court’s permission) and a claim form is valid for six months.
D applied under CPR Part 11 (challenge to jurisdiction) for (a) a declaration that the claim form had expired and had not been served within its period of validity because of the deemed data provision in CPR rule 6.14; (b) a stay under s.49 of the Civil Jurisdiction & Judgments Act 1982; alternatively (c) to strike out C’s claim in respect of publication outside of England & Wales.
C cross-applied for (a) a declaration that the claim form was served within its period of validity; and (b) alternatively, a retrospective extension of time for the service of the claim form of one day under CPR rules 7.6, 6.15, 3.9 and/or 3.10.
(1) Was the Claim Form served within its period of validity (six months)?
(2) If not, should the Court grant a retrospective extension of time?
(3) Was the forum non conveniens discretion precluded by the rule in Owusu v Jackson  QB 801?
(4) If not, should a stay be granted on the basis that Scotland was the ‘clearly more appropriate’ forum for trial of the action?
(5) If to be heard in England & Wales, did the English court have jurisdiction to award global damages?
(6) [Post-Hearing, in writing] Did the service provisions of s.1139 of the Companies Act 2006 apply to D?
(1) Yes – the decision of Master McCloud in Paxton-Jones v Chichester Harbour Conservancy  EWHC 2270 (QB) was to be preferred to that of Andrew Baker J in Brightside v RSM UK Audit  1 WLR 1943. The deemed service provision in CPR r.6.14 was not applicable for the purposes of determining the validity of the claim form.
(2) No – had the claim form not been served within its period of validity, the judge would not have granted discretionary relief.
(3) No – both C and D were domiciled in the UK, and the rival fora preferred by the parties were England and Scotland. There were no ‘international elements’, and the case was ‘purely domestic’ (Cook v Virgin Media  1 WLR 1672 (CA) and Maletic v lastminute.com GmbH  QB 424 (CJEU) applied).
(4) Yes – the factual dispute, including most likely witnesses and documents, were in Scotland. The Scottish courts could (per the judge’s ruling on issue (5) consider global damage, whereas the English court could not.
(5) No – the rule in Shevill v Press Alliance  2 AC 18 (CJEU) should be applied by analogy into Schedule 4 of the Civil Jurisdiction and Judgments Act 1982 (applying the obiter of Lord Goff in Kleinwort Benson v Glasgow City Council  1 AC 153, 183). Accordingly, to recover global damages, D had to be sued not only in the UK (the Member State of its domicile) but in the part of the UK of its domicile (Scotland) which alone had general (not special) jurisdiction.
(6) No – on the post-hearing evidence provided, D was incorporated by a private Act of Parliament and is not a company formed or registered under the Companies Act 2006 or its predecessors.
A rare case on intra-UK jurisdiction and conflicts of law. At the hand-down of judgment on 17 January 2017, Sir David Eady gave the Claimant permission to appeal on issues (3), (4) and (5), and gave the Defendant permission to appeal issue (1).
Penningtons Manches for C; RPC for D
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