Thorny issues of jurisdiction and claim form service laid bare by High Court
In Howard Kennedy v The National Trust for Scotland [2017] EWHC 3368 (QB), the High Court considered two complex issues: one relating to the doctrine of forum non conveniens and the other to the CPR provisions on service of a claim form. Sir David Eady stayed the action in England & Wales on the basis that Scotland is the more appropriate forum. He also provided guidance on the tricky interplay between deemed and actual service of a claim form, ultimately holding that the claim form in this case had been validly served in time.
The full decision can be found here.
Facts
This dispute arose after the Claimant, a photographer domiciled in Scotland, conducted a commercial photoshoot of a naked model on the grounds of Craigievar Castle in 2012, a property in Scotland which was gifted to the Defendant by Lord Sempill. According to the Claimant, permission for the shoot was orally agreed with a representative of the Defendant. Four years later the episode came to the attention of the national press after Lord Sempill's daughter complained that the castle had been used for the purpose of taking nude photographs. The Defendant made press statements in February 2016 denying that the photoshoot had been authorised. These statements were subsequently reported in a number of media outlets such as the Scottish Mail on Sunday, the Metro and other publications in Italy, France and Brazil.
The Claimant issued a claim form on 24 February 2017 (the final day of the limitation period) alleging defamation, negligent misstatement and various breaches of the Data Protection Act 1998. The claim form was sent by post to the Defendant's offices in Scotland on 23 August 2017 and it was received on 24 August 2017, the final day on which the claim form was valid (given that it was served out of the jurisdiction).
The issues before the court were (i) whether service of the claim form was valid in light of CPR r.6.14 and, (ii) if so, whether the action should be stayed on the basis that Scotland would be the more appropriate forum. This article addresses these two issues, albeit out of turn.
Forum non conveniens
The Claimant relied on EU case law (Owusu v Jackson (C-281/2002) and Maletic v lastminute.com GmbH (C-478-12)) to argue that the court was precluded from considering forum non conveniens issues. He submitted that, as his complaint relates to republication in states other than the UK (as well as the UK), the case is not "purely domestic" and therefore all jurisdictional matters should be governed by the Brussels Recast Regulation 2012/2015 (the Regulation) which precludes the discretion of the English Court to stay the claim on grounds of forum non conveniens . The Court rejected this argument, finding that the only jurisdictional competition was between the courts of Scotland and England & Wales (i.e. internal to the UK). The fact that the Claimant complained of third parties republishing the material outside of the UK did not constitute an "international element" sufficient to take the case out of the "purely domestic" category. The Court suggested that the case would be different if the Defendant had been domiciled in a different member state and sued in the UK, or if the Claimant had sued more than one media outlet, based in different jurisdictions. The court concluded that the only competing jurisdictions were those within the UK which were matters for internal determination by the UK Courts. The Regulation was therefore not engaged, and the Court instead referred to the Civil Jurisdiction and Judgments Act 1982 (the Act) to decide the issue (though it was informed by the EU's approach to jurisdiction).
Considering whether to stay the proceedings under s49 of the Act, the Court found that the key question was whether Scotland was clearly the more appropriate jurisdiction for resolving the issues, in the interests of all the parties and the ends of justice. Though he found that there were arguments for both jurisdictions, he was ultimately persuaded that Scotland was the more appropriate forum. The two key factors were: (i) that both parties are domiciled in Scotland (and therefore the Defendant should be sued there as per Rule 1, Schedule 4 of the Act); and (ii) that the Scottish courts can deal with all the causes of action and the principal remedies sought. Other factors cited in support of Scotland included the availability of the (Scotland-based) witnesses, and that the photoshoot at the centre of the case took place in Scotland.
The Court also went on to consider whether, if the claim were to go ahead in England & Wales, the recovery of global damages (i.e. damages in respect of all harm across multiple jurisdictions) would be available. Applying the approach adopted by the CJEU in Shevill v Press Alliance [1995] 2 AC 18 to the UK's internal jurisdictions, the Court found that where a libel is published in more than one jurisdiction in the UK, the litigant is given the choice of suing where the defendant is domiciled (the "general jurisdiction") where s/he can recover all relevant damages, or suing in each of the jurisdictions where harm is said to have incurred (the "special jurisdictions") and recovering the damages for the harm incurred in each jurisdiction individually. The Court noted that the Claimant had chosen to claim in England & Wales only, but had not confined his claim to the harm caused here. Based on the preceding analysis he concluded that had he permitted the Claimant's case to continue in England & Wales he would have struck-out the claim to global damages. Though this observation was ostensibly obiter, the competing courts' respective ability to award global damages explicitly fed into factor (ii) above when the Court was considering whether or not to grant the stay.
Was the claim form validly served?
This part of the dispute centred on the interplay between CPR r6.14 and r7.5(2). The key question was whether r6.14 fixes the date on which service of a claim form occurs for all CPR purposes, or whether there remains a distinction between the actual date of service and the deemed date under the CPR. It was important in this case because the deemed date of service pursuant to r6.14 was 25 August 2017 (i.e. two days after the claim form was posted), whereas the actual date the Defendant received the claim form was 24 August 2017. Crucially, the last day for valid service was 24 August 2017.
Notably, if the claim form had been served within the jurisdiction the same issue would not have arisen, owing to a distinction between the wording in r7.5(1) (which deals with service in England & Wales) and r7.5(2) (which deals with service outside of the jurisdiction). Whereas sub-para (1) only requires the Claimant to complete the relevant step (in this case, posting the claim form) within four months of issue, sub-para (2) requires that the claim form is served within six months of issue. If sub-para (2) was articulated in the same way as (1), the Claimant would have indisputably validly served the claim form.
The Court reflected upon a significant number of cases on this point, many of which cannot be easily reconciled. In Brightside v RSM UK Audit [2017] 1 WLR 1943, Andrew Baker J held the view that CPR r6.14 fixes the date for all CPR purposes, including the date of service in Scotland. In contrast, Master McCloud in Paxton Jones v Chichester Harbour Conservancy [2017] EWHC 2270 found that the deeming provisions operate as a means of calculating other deadlines, such as the acknowledgement of service and defence. She reasoned that the alternative interpretation results in a two-day "dead period" at the end of a claim form's validity.
Ultimately, the Court found in favour of the Claimant. It held that there is a distinction between the deemed date and actual date of service by drawing particular attention to the wording of r.6.14 which fixes the deemed date of service for "a claim form served". It was persuaded by Master McCloud's analysis and decided that Andrew Baker J's observations on the date of service in Scotland were obiter. The Court further reasoned that the alternative finding would require the construction of a counter-factual history, namely that the claim form had not actually arrived on 24 August, even though there was no dispute between the parties that it had arrived on that date. The Court was not prepared to invalidate the claim form on the basis of a legal fiction without express wording in the CPR. Nonetheless, it recognised that it was not an easy point to determine and suggested that greater clarity in the drafting would be helpful to ease the "unfortunate tension" between the CPR provisions.
Comment
The application of the forum non conveniens discretion by the Court serves as a useful indication of how or whether the Courts will apply the Regulation in a case where, as is inevitable in modern defamation cases, there is online publication in a number of jurisdictions. The mere reliance on third-party publications in jurisdictions outside of the UK did not provide a sufficient international element to engage the Regulation and take it out of "purely domestic" territory.
The decision also provides useful guidance on the application of the forum non conveniens discretion itself. The domicile of the parties (and the Defendant in particular) is a key consideration, as is the capability of the competing jurisdiction's courts to provide substantial justice. The way a claim is articulated may prove important, with the Court indicating that, had the claim been for damages relating to harm suffered in England & Wales only, the continuation of the case in England & Wales would not have necessitated strike-out of global damages and therefore the claim would not have had to "change fundamentally".
Whilst the Claimant was nevertheless successful in obtaining a declaration that the claim form was validly served, the complexity of the issue should serve as a warning to future claimants not to leave serving their claim forms to the wire!
RPC acted for the National Trust for Scotland in this case. The Claimant has been granted permission to appeal the decision on the forum non conveniens stay (and the decision regarding global damages) and the Defendant has been granted permission to cross-appeal the decision on the validity of the claim form.