INTRODUCTION
1. Sir L. B.-C. QC (Sir L.), the Second named Defendant in these
proceedings, is the author of a booklet intituled “The Birmingham Six and
other Cases - Victims of Circumstance”. The First named Defendant (D.) is
the publisher of the booklet.
2. Each of the Plaintiffs, in common with four other men, have become
known collectively as “The Birmingham Six” and allege in their statements
of claim that they were:
“the victim[s] of a notorious miscarriage of justice in England arising
out of the aftermath of the Birmingham pub bombings in 1974 in which
atrocity upwards of twenty people were killed and injured”.
3. Each of the Plaintiffs allege that they have been defamed by material
contained in Sir L.s’ booklet and commenced the instant proceedings
before this Court by Plenary Summonses dated the 31st day of July 1998.
In the summonses the address of Sir L. is given as …, London whilst that
of D. is …, London.
4. These summonses claim:
1. Damages for libel
2. Damages for breach of the Plaintiffs’ constitutional right to their good
name as protected by Article 40.3.2. of the Constitution
3. An injunction restraining the defendants from publishing the allegedly
defamatory material.
5. Each summons contained the following endorsement:
“The court has power under the jurisdiction of Courts and Enforcement of
Judgments (European Communities) Act 1988 to hear and determine the
Plaintiff’s claim and the Court shall assume jurisdiction to hear the said
claim under provisions of Article 5 (3) of the 1968 Convention signed in
Brussels on the 27th day of September 1968.
B. No proceedings between the parties concerning this cause of action are
pending between the parties in any other Contracting State”.
6. D. entered unconditional appearances to these summonses. In each
case Sir L. entered a conditional appearance solely for the purpose of
contesting jurisdiction. He then brought the present motions which seek
inter alia in each case the following reliefs:
1. A declaration that in the circumstances of the case, this court has no
jurisdiction over the subject matter of the proceedings.
2. An order setting aside the service upon Sir L. of the Plenary Summons
and Statement of Claim.
3. An order striking out and/or staying the proceedings.
4. In the alternative, an order staying the proceedings on the grounds of
forum non conveniens.
7. In the hearing before me Sir L. did not pursue the reliefs sought at
ground No. 4 so I do not have to consider any question of forum non
conveniens .
8. Another question also disappeared out of the case during the hearing
before me as a result of a concession made by the Plaintiffs. This
concerned the claim for damages for alleged breach of the Plaintiffs’
constitutional right to their good name as protected by Article 40.3.2
of the Constitution. It was accepted that insofar as these actions are
concerned that claim did not have a separate and independent existence
and was subsumed by the claim for damages for libel. The claim for
damages for libel is brought pursuant to the provisions of the Defamation
Act, 1961 which the Plaintiffs accept is the enactment giving expression
to, and method of enforcement of, their constitutional right to their good
name. It follows therefore that the Plaintiffs’ claims fall to be considered
as straightforward claims for damages for libel. Counsel for the Plaintiffs
has also accepted that these proceedings seek to recover damages only
in respect of any loss of reputation suffered by the Plaintiffs within the
jurisdiction of this court.
THE EVIDENCE
9. Four affidavits were sworn in respect of this application. Two were
sworn by Sir L. and one each by Mr. C. and by Mr. H-. The decision in Mr.
H.’s case will govern Mr. C.’s case.
10. In his first affidavit Sir L. averred that he wrote the book in question
between May and September 1997 and delivered the finished manuscript
to D. at it’s London office on the 20th of September 1997. D. published
the book in England on the 29th of November 1997.
11. Sir L. received a letter dated the 26th of February 1998 from the Irish
Solicitors for the Plaintiffs complaining of alleged libel and threatening the
commencement of proceedings against him. His English Solicitors replied
to that by letter dated the 1st of April 1998. In addition to taking issue
with the Plaintiffs’ contentions this letter also questioned the entitlement
to bring these proceedings.
12. Sir L. says that he considers the bringing of these proceedings an
unusual course by reason:
(a) of the provisions of Article 2 of the Brussels Convention;
(b) that England is the site of all of the events connected with the alleged
defamation, including publication and is where he is both domiciled and
personally resident;
(c) that England is the home of every witness who may be required to
give evidence in a trial;
(d) that England is the location of all of the voluminous documentation
involved in the case;
(e) that the Plaintiff, although an Irish Citizen, is resident, and probably
domiciled, in England;
(f) that questions of immense constitutional importance which are
discussed in the book are solely related to England and are exclusively
matters of English law and primarily of English public interest;
(g) that England is where all the events associated with the Birmingham
Six took place;
(h) that there could be no jurisdictional impediment of any kind to the
Plaintiff bringing these proceedings in England where he is resident.
13. The replying affidavit sworn by Mr. H. inter alia avers that as an Irish
citizen he is entitled to pursue his claim in this court. He says that he
made the decision to issue the proceedings in this jurisdiction because
he was very concerned about the damaging effect of the booklet to his
reputation in Ireland and among Irish people wheresoever located. He
says that Sir L. is incorrect in claiming that England is the site of all
events connected with the defamation. He says that the booklet was
circulated in Ireland, both North and South, through book shops to
the general public who were the people who rallied to the cause of the
Birmingham Six. He says that many of the witnesses which he would
propose to call are residents of Ireland. Whilst currently resident in
London, he has an intention of returning to Ireland in the coming years
with a distinct possibility that he may do so permanently. In the past, he
has been a regular visitor to Ireland and has family members living in
Northern Ireland and in this State. He regularly holidays in this country
and says he is well known in it, having appeared on various television
and radio shows. He holds an Irish passport and has never held a British
one. He accepts that there is no jurisdictional impediment to bringing his
proceedings in England given that the book was published and distributed
there.
14. Mr. C.’s affidavit is largely the same as Mr. H.’s. The only differences
concern the family connections with Ireland and the fact that he has been
making enquiries about the purchase of a home in this State. Nothing
turns on these differences.
15. The final affidavit was sworn by Sir L. in reply. He reiterates that
he handed the manuscript to D. at their offices in London. A short time
before publication at the end of November 1997, he had discussions
with D. about the desirability of not directly disseminating the book in
Ireland. That arose from the fact that since December of 1992, Sir L.
has held the post of Independent Commissioner for the Holding Centre
in Northern Ireland. That was an appointment made by Her Majesty’s
Secretary of State for Northern Ireland under prerogative powers and
had to be formally approved by the government of this state through the
agency of the Anglo-Irish Secretariat in Belfast. Sir L. had discussions
with officials in the Northern Ireland Office about any political impact that
might ensue from publication of the book in both Northern Ireland and
the Republic of Ireland. Those discussions were held before he met with
his publishers on the topic. He says that “[w]hile some worry was held by
officialdom of some adverse comment by republican commentators”, he
was assured that the Secretary of State for Northern Ireland would affirm
his appointment, acknowledging that he was independent of government
and was free to express his views publicly about miscarriages of justice
in the English Courts. Armed with that unofficial expression of view he
says that he requested the publishers to avoid distribution of the book
in Ireland. Their response was to indicate that they had no means of
preventing all copies of the book reaching Ireland and he acknowledged
that difficulty. That, he says, is very different from encouraging direct
sales and the publishers were, he believes, well aware that he did not
wish that to happen. He therefore invites me to draw the inference that
the distribution of the book in this jurisdiction was not desired by him.
Furthermore, he points out that under his contract with the publishers he
receives no royalty on sales anywhere in the world and was entitled to
receive a mere £25.00 as a contribution for secretarial expenses which he
had incurred. He then draws my attention to the fact that the issue as to
whether or not it was agreed between D. and himself, that no distribution
would take place in Ireland, is now the subject of litigation before the
High Court in England.
16. In those proceedings Sir L. is being sued by D. who seek inter alia a
declaration that he is obliged to indemnify them in respect of the instant
proceedings. That declaration is sought on foot of an agreement of 28th
July, 1997 between Sir L. and D. whereby the publishers were granted the
sole and exclusive right to publish the booklet.
17. In his defence in those proceedings Sir L. admits that the booklet was
published in this State but denies that such publication was in accordance
with the publication agreement. He says “[t]he express wish of the
Defendant [Sir L.] as communicated to the Plaintiff was that the Work
was not to be distributed in Ireland”. Particulars of the expression of
this wish are then given. They are that Sir L. spoke with the agent and
representative of D. as to restricting the sale of the booklet in Ireland.
Thereafter, but prior to publication of the booklet, Sir L. spoke with the
assistant of the agent and expressed the wish that the booklet should not
be published in Ireland.
18. In the English proceedings D. deny Sir L.s’ assertions in the defence
which I have just alluded to. They make the point that the written
agreement confers the right to publish throughout the world. Even if there
was the discussion alleged, it would not, it is said, affect the publishers’
rights in the written agreement.
19. Whilst the conversation with the agent is admitted, its alleged
contents are not. Instead it is said that Sir L., whilst expressing a
preference for the book not to be “pushed” in Northern Ireland because
he might be accused of being anti-Republican, no reference was made to
this State.
20. These are matters which must be ruled upon by the English High
Court but I have set them out so as to complete the description of the
evidence placed before me on this application.
THE BRUSSELS CONVENTION
21. The Brussels Convention is part of Irish domestic law. It has become
so on foot of the Jurisdiction of Courts and Enforcement of Judgments
(European Communities) Act, 1988.
22. The general rule of the Convention is stated in Article 2 thereof
which provides that subject to the provisions of the Convention, persons
domiciled in a contracting State shall, whatever their nationality, be sued
in the Courts of that State. There are, however, exceptions to that rule
and in this case one of those exceptions is relied upon by the Plaintiffs.
The exception is that contained in Article 5(3). That provides that a
person domiciled in a contracting State may, in another contracting State,
be sued in matters relating to tort, delict or quasi-delict, in the Courts for
the place where the harmful event occurred.
23. As Article 5(3) is in the nature of an exception to the general rule set
forth at Article 2 of the Convention, the Plaintiffs accept that the onus
is upon them to establish that the circumstances of the case bring them
within the exception relied upon (see Ewins v. Carlton [1997] 2 ILRM 223
at 227).
In Ewins case, which I have just mentioned, Barr J. had to deal with a
claim for damages arising out of a television documentary made and
published by a company called Carlton and disseminated to the public by
ITN, including Carlton and Ulster Television. Carlton and Ulster Television
were limited liability companies established under the laws of the United
Kingdom and each challenged the jurisdiction of this Court. The affidavit
sworn by the defendants’ solicitor stated that the plaintiffs were seeking
to claim damages on a world-wide basis and argued that the provisions
of Article 5(3) of the Brussels Convention did not permit this. Further,
he argued that the Courts of the United Kingdom were the appropriate
forum pursuant to Article 2 of the Convention and a world-wide claim
could properly be made in those Courts. The documentary was provided
by Carlton to Ulster Television which, simultaneously with Carlton,
transmitted the programme on its network. It was estimated that as many
as 111,000 viewers watched the programme in this jurisdiction. In these
circumstances the plaintiffs argued that the “harmful event” within the
meaning of Article 5(3) of the Brussels Convention occurred in this State
and so they were entitled to sue in this State.
24. Barr J. refused the relief sought by the defendants but limited the
plaintiff's claim to damages for harm done to them in this State. In the
present case the Plaintiffs have already accepted that they can only bring
these proceedings in respect of harm done to their reputation in this
State.
25. In the course of his judgment, Barr J. referred to the decision of the
European Court of Justice in Shevill v. Presse Alliance S.A. [1995] 2 AC
18. The facts in that case are well known. The plaintiff, a United Kingdom
national resident in Yorkshire, complained that she had been libelled in
an article in the newspaper “France Soir” which was published by the
defendant company. That paper was mainly distributed in France where
sales amounted to more than 237,000 copies daily. 230 were sold in
England. The defendant argued that under Article 2 of the Convention the
French Courts had jurisdiction in the dispute and the English Courts could
not assume jurisdiction under Article 5(3) of the Convention. The Law
Lords referred the case to the European Court of Justice for a preliminary
ruling. It was held by that Court at page 64 that:
“(1) On a proper construction of the expression ‘place where the harmful
event occurred’ in article 5(3) of the Convention ..... the victim of a libel
of a newspaper article distributed in several contracting States may bring
an action for damages against the publisher either before the courts of
the contracting State of the place where the publisher of the defamatory
publication is established, which have jurisdiction to award damages
for all the harm caused by the defamation, or before the courts of each
contracting State in which the publication was distributed and where
the victim claims to have suffered injury to his reputation, which have
jurisdiction to rule solely in respect of the harm caused in the State of the
court seised.
(2) The criteria for assessing whether the event in question is harmful and
the evidence required of the existence and extent of the harm alleged by
the victim of the defamation are not governed by the Convention but by
the substantive law determined by the national conflict of laws rules of
the court seised, provided that the effectiveness of the Convention is not
thereby impaired”.
SIR L.s’ SUBMISSIONS
26. Sir L. contends that the determination of jurisdiction, including the
identification of the place where the harmful event occurred, is a matter
of Convention law. He says that it is implicit in the opening sentence of
Article 5 and in Article 5(3) that for a person to be sued in a particular
jurisdiction, he must have responsibility for the alleged harmful event
occurring in that jurisdiction. That, he says, is a matter of Convention law.
The analysis of the case, once jurisdiction is established, then becomes
an issue of national law and the criteria for assessing whether the event is
harmful is also a matter of national law. He cites Shevill’s case in support
of these arguments.
27. Put in a nutshell, it is said that Sir L. published the matter complained
of when he handed the manuscript to D. in London. That was the only
publication by him and it did not occur within the jurisdiction of this Court.
D. then decided to publish in this jurisdiction but did so in circumstances
where such publication was not the natural and probable result of the
original publication of the material to them by Sir L.. It is contended
that Sir L. could only have a liability in this jurisdiction in circumstances
where the publication was either approved of by him or was the natural
and probable result of the original publication which he made to D. by
handing them the manuscript in London. It is therefore said that he
neither intended to nor was it the natural and probable result of this
publication that the booklet should be published in Ireland. He says that
this case is quite different on its facts from Ewins case where the natural
and probable consequence of providing the television programme to
Ulster Television for broadcast on its network was that it would reach a
significant number of viewers in this State.
THE POSITION AT COMMON LAW
In Speight v. Gosnay (1891) 60 LJ QB 231, it was held by the Court of
Appeal that the original publisher of a defamatory statement is liable for
its republication by another person where, inter alia , the repetition or
republication of the words to a third party was the natural and probable
result of the original publication. That rule has been accepted as part of
the law of Northern Ireland and of this State (see Turkington v. Baron
St. Oswald (High Court, Northern Ireland, 2nd May 1996) and Ewins v.
Carlton [1997] 2 ILRM 223 at 231).
28. Whilst it is accepted that this is the position at common law, it is
said that I must look at the issue before me not by reference to this
common law concept but rather by reference to the Convention. Looked
at in this light, it is submitted that Sir L. has no sufficient nexus with the
publication in this State to entitle the Plaintiffs to sue him here.
29. I cannot believe that the Convention seeks to depart from the
notion that the original publisher of defamatory matter will be liable
for republications which are the natural and probable consequences
of such publication. No authorities have been cited to support such a
view. Indeed, the very way in which the issue has been formulated as
a matter of Convention law by Counsel for Sir L. bears a remarkable
resemblance to the common law position. The question which I must
address is, therefore, whether the publication in Ireland of the booklet is
a natural and probable consequence of Sir L.s’ first publication in all the
circumstances. If it is then this application fails.
NATURAL AND PROBABLE RESULT
30. There can be no doubt but that the only act of direct publication which
was effected by Sir L. was the handing of the manuscript of the booklet
to his publishers in London. However, it is quite clear that the purpose
of that publication was to bring about the production of the booklet in
question. That was the subject of a written contract entered into between
Sir L. and D.. There is no evidence that that contract contained an express
term prohibiting the publication or distribution of the work in question
in this jurisdiction. On the contrary, the terms of the written contract
expressly authorised D. to publish the work throughout the world and
indeed to licence any other publisher so to do. In the written contract,
therefore, Sir L. gave the widest possible publication rights to D.. Had he
wished to exclude publication in this jurisdiction, he could have insisted on
an express term to that effect being inserted into the written contract but
did not do so.
31. He does say, however, that notwithstanding that omission from the
written contract, nonetheless publication here cannot be considered to
be the natural and probable result because of what passed between him
and D. agents. The high water mark of the evidence adduced by Sir L.
as to the efforts made by him to ensure that publication did not occur
within this jurisdiction is that he (a) had discussions with the publishers
about the desirability of not directly disseminating the book in Ireland
(paragraph 4 of his affidavit sworn on the 28th June, 1999) and (b) that
he requested the publishers to avoid distribution of the book in Ireland.
He says that the publishers’ response was to indicate that they had
no means of preventing all copies of the book reaching Ireland and “ I
acknowledge that difficulty”. He goes on to say that that is very different
from encouraging direct sales and the publishers were, he believes, well
aware that he did not wish that to happen.
32. Merely to have discussions about the desirability of not directly
disseminating the book in Ireland and making a request to avoid
distribution of the book in Ireland does not appear to me to be going
anything like far enough to be able to successfully maintain that the
publication of the book in this jurisdiction was not the natural and
probable consequence of giving publication rights of the type in question
to D.. I am fortified in that view when Sir L. acknowledges the difficulty
of preventing all copies of the book reaching Ireland. It appears to me
that given the issues discussed in the book, the proximity of England to
Ireland and the interest that was likely to be shown in the topic in this
country, it was almost inevitable that publication would occur within this
jurisdiction. Such publication must have been the natural and probable
consequence of allowing the book be published in the first instance on
the terms set forth in the written memorandum. It may very well be
that Sir L. did not think it desirable that such should occur and sought to
avoid distribution by means of a request to the publisher but that falls
very short of taking effective steps to ensure that there would be no
publication.
33. At paragraph 7 of his affidavit sworn on the 28th June, 1999 Sir L.
says that what he did “is very different from encouraging direct sales
and the publishers were, I believe, well aware that I did not wish that
to happen”. Sir L.s’ wishes and the fact that he did not encourage direct
sales is not, however, the issue that falls to be determined upon this
application. The only issue is whether or not the publication of the book
in this jurisdiction was, in all the circumstances, the natural and probable
result of his furnishing the manuscript to D. in the circumstances revealed
in the evidence. In such circumstances publication of the work in this
jurisdiction was a natural and probable consequence of placing the book
for publication with D. and therefore, as a matter of law, Sir L. does have
responsibility for the alleged harmful event occurring in Ireland.
34. It follows, therefore, that these proceedings are properly brought
under
35. Article 5(3) of the Brussels Convention as against Sir L. and his
application must therefore be dismissed.