Kennedy v National Trust for Scotland

The National Trust for Scotland (“R”) owned Craigievar Castle in Scotland where Mr Kennedy (“A”) had taken photographs of a nude model in 2012. R issued a statement in 2016 denying that it had authorised the photoshoot, after the photographs came to the attention of the national media. R’s allegations were published in newspapers in England, Scotland and abroad.

A issued a claim for libel in respect of the press release (and also in negligence and under the Data Protection Act 1998). The claim form was sent to R at its registered office in Scotland on 23 August 2017 and arrived the following day. R applied for an order that the court did not have jurisdiction as the claim form had been served after the six-month deadline (which expired on 24 August 2017) as under CPR r.6.14 deemed service was on 25 August 2017. On an alternative basis, R submitted that the claim should be stayed as England was a forum non conveniens.

Sir David Eady, the judge at first instance, found that the claim form had been properly served, and that CPR r.6.14 had a limited function so as not to shorten the validity of the claim form. However, the Judge found that the claim should be stayed as England was a forum non conveniens and Scotland was the more appropriate forum. The Judge also made the obiter comment that had the claim not been stayed under the doctrine of forum non conveniens damages would have been limited to England and Wales alone.

A appealed on the grounds that (i) the Brussels Recast Regulation 2012/2015 (“the Regulation”) and the rule in Owusu v Jackson [2005] QB 801 precluded the operation of the doctrine of forum non conveniens; (ii) the claim should not have been stayed on the basis that Scotland is clearly the more appropriate forum; (iii) and that damage should not be confined to that suffered in England and Wales if the claim were to proceed there.

R cross-appealed on the ground that the Claim Form had been invalidly served outside of the 6-month period allowed and the judge had failed to apply the deemed service provisions of CPR r.6.14.

1.  Was the Judge prevented from granting a stay under the Regulation?

2.  Was Scotland the most appropriate forum for the claim?

3.  If not, was service of the Claim Form invalid?

4.  If so, should the claims for global damage be struck out?

1.  The Judge was not prevented from granting a stay.

Owusu was concerned with circumstances in which there was an international element, and not courts internal to the United Kingdom and does not assist with the question of whether the Regulation is engaged in the circumstances of this case. The only potential competition is between the courts of Scotland and England and Wales, and so the claim falls squarely within the example endorsed in Cook v Virgin Media [2015] EWCA Civ 1287 at [25] (i.e. “a matter is demonstrably wholly internal to the United Kingdom […] is not one in which the Regulation is designed to have any role” (per Professor Adrian Briggs QC in Civil Jurisdiction and Judgments (6^th Edition) at 2.28). Therefore the judge’s conclusion that there was no reason for the Regulation to be engaged on the facts is correct.

Even if the Regulation had been engaged, Article 4(1) provides that a person domiciled in a Member State must be sued in the courts of the same Member State, and so would be satisfied whether the claim was heard in Scotland or England and Wales as both jurisdictions were in one Member State: the United Kingdom.

2.  The Judge’s exercise of discretion could not be faulted.

Determination of an appropriate forum is preeminently a matter for the trial judge. Lord Mance’s comment in VIB Capital Plc v Nutritek International Corp [2013] UKSC 5 at [69] that an appellate court should refrain from interfering unless satisfied the judge made “a significant error of principle” or “a significant error in the considerations taken or not taken into account” was emphasised. It should not be interfered with in this instance.

3.  The Judge was correct in finding that the claim form had been properly served within the required time.

Rule 6.14 did not affect the temporal validity of a claim form. The reasoning given by Flaux J in T&L Sugars Ltd v Tate & Lyle Industries Ltd [2014] EWHC 1066 (Comm) and Master McCloud in Paxton Jones v Chichester Harbour Conservancy [2017] EWHC 2270 (QB) on this point was approved. In enacting the Civil Procedure (Amendment) Rules 2008 (SI 2008/2178), there was a specific legislative choice to prefer the actual date of service rather than deemed service.

4.  It was correct for damages to be confined to England and Wales alone and the claim for global damages would have been struck out had the claim proceeded.

There was no conflict between the judge’s reasoning and the CJEU’s decision in Shevill. Shevill was concerned with enforcement under the Regulation and not the allocation of jurisdiction within a Member State. Nor was the preclusion of global damages contrary to the objectives underpinning Shevill. These objectives (of avoiding concurrent litigation, preventing forum shopping, and ensuring the defendant can know before which court it risks being sued) are all applicable to a ‘sub-national’ model of the rule. There were also insufficient grounds on the judge’s factual findings or evidence to support a claim that the centre of A’s interests was in England.

Similarly, s.13(1) of the Data Protection Act 1998 is circumscribed by a domestic application of the rule in Shevill. A breach of statutory duty under the Data Protection Act 1998 involves similar tensions between freedom of information and the right to privacy that the CJEU envisaged Shevill covering in eDate [2012] QB 654.

This judgment provides clarity on jurisdiction for libel claims and remedies within the United Kingdom. The Court of Appeal approved the reasoning of Sir David Eady in the court below. A 5RB case report of Sir David Eady’s judgment can be found here: https://www.5rb.com/case/kennedy-v-national-trust-scotland/.