Howard Kennedy v The National Trust for Scotland
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lady Justice Asplin,Sir Rupert Jackson |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWCA Civ 648 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/0275 A2/2018/0277 |
| Date | 16 April 2019 |
[2019] EWCA Civ 648
Lady Justice Sharp
Lady Justice Asplin
and
Sir Rupert Jackson
Case No: A2/2018/0275 A2/2018/0277
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Greg Callus (instructed by Penningtons Manches LLP) for the Appellant/ Cross-Respondent
Mr David Glen (instructed by Reynolds Porter Chamberlain LLP) for the Respondent/Cross-Appellant
Hearing dates: 25/07/2018–26/07/2018
Judgment Approved
Lady Justice Sharp, Lady Justice Asplin and
This is the judgment of the court.
INTRODUCTION AND OVERVIEW
These appeals are concerned with a number of complex issues in relation to the jurisdiction of the courts of England and Wales in relation to claims in tort, including defamation, brought against a defendant domiciled in Scotland where damage is suffered in Scotland, England and Wales and further afield and the operation of the CPR in relation to deemed service of proceedings in Scotland. They are, in more detail: whether the doctrine of forum non conveniens applies in circumstances in which proceedings are issued in England and Wales against a party domiciled in Scotland in relation to harm allegedly suffered both within the United Kingdom and abroad, despite the Brussels Recast Regulation 2012/2015 (the “Regulation”) and the rule in Owusu v Jackson [2005] QB 801; whether if the doctrine applies, the claim should have been stayed on the basis that Scotland was clearly the more appropriate forum; whether, if not, the claim must be confined to damage suffered in England and Wales and claims for global damage in Scotland, Italy, France and Brazil should have been struck out; and whether the Claim Form was validly served. The appeals are from the order of Sir David Eady, sitting as a judge of the High Court. The citation for his judgment is [2017] EWHC 3368 (QB); [2018] EMLR 13.
These issues arise out of a photo shoot which took place at Craigievar Castle in Aberdeenshire on 23 September 2012. The castle is owned by the National Trust of Scotland (“NTS”). Mr Kennedy took a series of photographs of a nude model for commercial purposes. He says that he had entered into an oral contract with the NTS' photo librarian which expressly authorised that activity and that the photo shoot was overseen by NTS employees at the castle. He has produced a cheque for £200 which the NTS cashed around the time of the shoot. No defence has been filed, but in evidence for the CPR Part 11 application (disputing the jurisdiction of the court) the NTS disputes Mr Kennedy's account and in a witness statement filed on behalf of the NTS by its solicitor, it is stated that it “does not recognise the existence and terms of any contract (oral or otherwise) which sanctioned [Mr Kennedy] to take photographs of the nature which he took.”
Some four years later, in February 2016, this episode came to the attention of the daughter of Lord Sempill who had given the castle to the NTS. She protested about the use of the castle for the nude photo shoot and the matter was taken up by a journalist. On 24 February 2016 the journalist was given a statement made by or on behalf of the NTS which was reported in the Scottish Mail on Sunday of 28 February 2016. Thereafter, the NTS also issued a press release which denied that the taking of the photographs had been authorised. The press release was sent to BBC Radio Aberdeen, Original FM, a local commercial radio station for the north east of Scotland, The Press and Journal, an Aberdeen based newspaper, The Scotsman and a reporter on the Metro newspaper.
The press release constitutes the words complained of in Mr Kennedy's claim. Mr Kennedy contends that the press release is defamatory of him, was published by the NTS negligently in circumstances in which it owed him a duty of care, and in breach of the NTS' statutory obligations under the Data Protection Act 1998 (the “ DPA 1998”). He seeks damages, including special damage for loss of business, as well as an injunction and other relief under section 14 of the DPA 1998.
The parties themselves exchanged letters on 26 February and 1 March 2016 after which Mr Kennedy instructed solicitors and a formal letter of claim was sent to the NTS on 17 May 2016 which complained, amongst other things, of the extensive republication of the NTS' allegations in local and national newspapers. It was also said that Mr Kennedy's business appeared to have suffered considerable damage and particularly in respect of a falling demand for the training courses he provided.
The NTS also instructed solicitors who sent letters dated 27 May and 28 June 2016 which raised the issue of jurisdiction and suggested that it would not be appropriate for such a claim to be tried other than in Scotland. Nothing further was heard from Mr Kennedy or his solicitors until a letter of 6 January 2017, enclosing draft Particulars of Claim. It was claimed that the impact of the publications upon Mr Kennedy's business and reputation had been monitored. Further, it was acknowledged that the issue of forum non conveniens could arise but it was argued that by analogy with the approach in Lennon v Scottish Daily Record & Sunday Mail Ltd [2004] EWHC 766 (Ch); [2004] EMLR 16, the publications complained of also had a substantial English readership and Mr Kennedy had a substantial business reputation in England. It was also noted that Mr Kennedy enjoyed a number of advantages in suing in England including the possibility of higher damages, the availability of conditional fee agreements and “after the event” insurance and the absence of a risk of “high-cost' jury trials.
The NTS' solicitors responded by a letter dated 24 January 2017 in which they rejected Mr Kennedy's claim and reiterated the reasons why Scotland was the most appropriate forum for the dispute. The Claim Form was issued on 24 February 2017 in the High Court in London, just as the one year limitation period in relation to the defamation claim was about to expire. Nothing further was done in order to progress the matter until a letter from Mr Kennedy's solicitors dated 26 May 2017 was received by the NTS. A further draft of the Particulars of Claim was enclosed and it was stated that they would be served, together with the Claim Form no later than 23 June 2017. Changes to the draft Particulars of Claim were explained on the basis of a change of approach to the issue of jurisdiction in light of three foreign republications of the words complained of.
Eventually, following further correspondence, on 18 August 2017, the NTS' then solicitors indicated that they were not instructed to accept service. As a result, Mr Kennedy's solicitors attempted to serve the proceedings on the NTS at its registered office in Edinburgh, by first class post on 23 August 2017 pursuant to CPR r 6.3(1)(b). The documents arrived the following day but the NTS contended that this was not effective service because they said that the six month validity of the Claim Form had expired at midnight on 24 August 2017 and by reason of CPR r 6.14, service would be deemed to have occurred on 25 August being two days after the documents were committed to the first class post.
By an application notice dated 29 September 2017, the NTS sought orders that the court had no jurisdiction to try the claim because the Claim Form was not served on the NTS within 6 months of the date of its issue and further, or alternatively, the claim should be stayed on the grounds of forum non conveniens on the basis that Scotland was the more appropriate forum for the trial of the action. Mr Kennedy, in turn, issued his own application dated 11 October 2017 seeking either a declaration that the Claim Form and Particulars of Claim had been served validly within the requisite time or alternatively, seeking retrospective relief from the requirements of CPR r 7.5(2) under CPR r 6.15(2), 6.27, 7.6, 3. 9 or 3.10.
It was those applications which came before Sir David Eady. He considered the issue of whether the Claim Form had been validly served at paras 7 – 32 of his judgment and concluded that it had been. He set out his central reasoning at para 31, as follows:
“31. I would certainly not suggest that I have found the point easy to determine, but I have in the end come to the conclusion that in this respect I agree with the Master's reasoning (and that of Flaux J in T&L Sugars). Although it was no doubt unwise of the Claimant's advisers to go right to the wire on this, the fact remains that they had six months in which to serve the claim form and this was achieved with just hours to spare. They had six months because that is provided in CPR 7.5(2). From the moment of service it became “a claim form served within the United Kingdom”. (It would have made no sense for anyone to have said on 24 August “the claim form is deemed to have been served tomorrow”.) Thereafter it was to be treated as if served on 25 August. That is perfectly workable for procedural purposes, such as calculating due dates, but I would not accept that the “deeming” provision can of itself be taken as cutting down the period of the claim form's validity or removing the jurisdiction of the court, which are matters of substance. It would require clear and unambiguous wording to achieve that.”
In case he was wrong, the judge went on, nevertheless, at paras 33 – 39, to consider Mr Kennedy's applications for retrospective relief and concluded that none of the applications would have succeeded on the facts. He then went on to consider alternative submissions which had been made under section 1139(1) Companies Act 2006 and related provisions to which CPR...
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