CARSWELL LJ: This is an appeal from an order made by Master Wilson
on 19 February 1996, whereby he acceded to the application of the
first named defendant to have service upon him set aside, and in the
alternative to have the action stayed as against him.
The plaintiffs are a firm of solicitors who carry on practice in Belfast. They
acted on behalf of C., a member of the Parachute Regiment, when C. was
prosecuted in Belfast Crown Court for the murder of K., a young woman
engaged in joy-riding in a stolen car which was driven through a vehicle
check-point, and in his unsuccessful appeal against his conviction to the
Court of Appeal. The first defendant Lord O. was at all material times the
chairman of a committee formed to press for the release of C..
On 23 January 1995 a press conference was held at Lord O.'s home at
Nostell Priory, near Wakefield, Yorkshire, at which reporters, including
television reporters, were present at his invitation. It is claimed in
paragraph 3 of the statement of claim that in the course of the press
conference he spoke certain words, referring to the conduct of the
defence of C., which were defamatory of the plaintiffs' firm. His remarks
were recorded at the time and were broadcast in a television programme
that evening by the second defendant the B. Corporation. In the course
of that programme other words, set out in paragraph 4 of the statement
of claim, were spoken which the plaintiffs claim were also defamatory
of them. It is stated in paragraph 6 of the statement of claim that the
programme was received by television viewers throughout the United
Kingdom and in the Republic of Ireland and that the words complained
constitute the tort of defamation under the laws of England and Wales,
Scotland, Northern Ireland and the Republic of Ireland.
The plaintiffs issued a writ of summons on 22 September 1995, directed
to Lord O. and the B., claiming damages for libel. The writ was served
by post on the first defendant, together with a statement of claim. On
12 October 1995 the solicitors acting for the first defendant entered
a conditional appearance. They brought this application by summons
dated 16 January 1996, asking that the court should set aside the service
upon the first defendant of the writ of summons, pursuant to RSC (NI)
Order 12, rule 8. At the hearing before the master counsel for the first
defendant asked that he should in the alternative stay the action on the
ground of forum non conveniens. The master found in favour of the first
defendant on both grounds. He ordered that service on him be set aside,
and was also prepared to order a stay of the action as against the first
defendant alone. The plaintiffs appealed to this court by notice dated 23
February 1996.
Service of proceedings out of the jurisdiction in another part of the
United Kingdom is governed by Schedule 4 to the Civil Jurisdiction
and Judgments Act 1982, by which provisions comparable with those
contained in the Brussels Convention in relation to contracting states
were enacted in relation to the countries of the United Kingdom. The first
defendant claims that exclusive jurisdiction is given to the English court,
by virtue of Article 2 of Schedule 4, which provides:
"Subject to the provisions of this title, persons domiciled in a part of the
United Kingdom shall... be sued in the courts of that part."
Article 3 goes on to provide:
"Persons domiciled in a part of the United Kingdom may be sued in the
courts of another part of the United Kingdom only by virtue of the rules
set out in Sections 2, 4, 5 and 6 of this title."
The plaintiffs claim, on the other hand, that the case is governed by
one of the exceptions to the basic rule that the courts of a defendant's
domicile have exclusive jurisdiction, contained in Article 5(3). The
material part of Article 5 reads:
"A person domiciled in a part of the United Kingdom may, in another part
of the United Kingdom, be sued --
(3) In matters relating to tort, delict or quasi-delict, in the courts for the
place where the harmful event occurred or in the case of a threatened
wrong is likely to occur."
The wording of Article 5(3) of Schedule 4 is identical with that contained
in the corresponding provision of the Convention. Section 16(3) of the
1982 Civil Jurisdiction and Judgments Act provides that in determining
any question as to the meaning or effect of any provision contained in
Schedule 4 --
"regard shall be had to any relevant principles laid down by the European
Court and to any relevant decision of that Court as to the meaning or
effect of the Convention."
The case was put forward on behalf of the first defendant in this court on
the ground that he is domiciled in England and the exception in Article
5(3) does not apply, since the "harmful event" was his speaking the
words in Yorkshire. It was argued on behalf of the plaintiffs, on the other
hand, that Lord O. committed two torts, that of slander, when he spoke
the words to the reporters in England, and that of libel, when the words
were published in Northern Ireland and other jurisdictions. Mr Lavery for
the plaintiffs pointed to the rule of domestic law that the tort of libel is
committed on every occasion when and in every place where the words
are published: Gatley on Libel and Slander, 8th ed, para 261. Under the
rule in Speight v Gosnay (1891) 60 LJQB 231 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
person was the natural and probable result of the original publication:
Gatley, op cit, paras 266 et seq Mr Lavery submitted that the obvious
object of holding a press conference was to obtain publicity for the
statement made by Lord St Oswald and that accordingly this condition
was satisfied.
In my opinion the plaintiffs have established a prima facie case
against the first defendant in their claim for libel, on the basis that the
republication of the words by the B. in Northern Ireland was the natural
and probable result of their original publication at the press conference
at Nostell Priory. The object of a press conference is to obtain publicity
for what the holder wishes to say, and he would ordinarily expect, and
probably hope, that his statements would be given publicity, and the
wider the better. The plaintiffs have only to establish a prima facie or
arguable case for the purposes of resisting the present application, and
it is not necessary for them to go further or for me to express a more
definitive opinion.
If the matter were governed solely by domestic law, accordingly, the
plaintiffs would be on solid ground in contending that the tort of libel
was committed by the first defendant in Northern Ireland when the
words were published there, and that the harmful event occurred in this
jurisdiction. Mr Deeny for the first defendant submitted, however, that
the court should not judge the matter by reference to domestic law, but
should apply the principles to be derived from Community law, as the
majority of the Court of Appeal held in Kleinwort Benson Ltd v Glasgow
City Council [1987] AC 597. He pointed to the principle laid down by the
European Court of Justice in Shevill v Presse Alliance SA (Case C-68/93)
[1995] 2 AC 18 and [1995] 2 WLR 499 that where a libel has been
published in several contracting states the plaintiff has a choice: he can
bring an action for damages in 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 he can bring proceedings 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.
It is not necessary for me in this application to decide whether the
principle laid down in Shevill v Presse Alliance SA applies in actions
brought in one part of the United Kingdom in which damages are claimed
for a defamatory statement published in two or more parts of the United
Kingdom. If the principle does apply, it does not in my view conclude the
matter in favour of the first defendant. The European Court of Justice
held in Handelswekerij GJ Bier BV v Mines de Potasse d'Alsace SA (Case
21/76) [1978] QB 708 that on the proper construction of Article 5(3) of
the Brussels Convention a plaintiff claiming damages for a tort has an
option enabling him to sue the defendant before the court where either
the damage or the event giving rise to it occurred. This decision was
followed and applied in Shevill v Presse Alliance SA, where it was held,
as I have set out, that the plaintiff in a case of defamation could sue
the publisher in the country where it was established or in each of the
countries in which the publication was distributed. Mr Deeny cited Marinari
v Lloyd's Bank plc (Case C-364/93) [1995] TLR 524, but I do not consider
that it affects the validity of the principle contained in the Bier case. If
one has regard to this principle in determining the construction of Article
5(3) of Schedule 4 to the Civil Jurisdiction and Judgments Act 1982, as
the court is required to do by section 16(3), the conclusion follows that
the exception in Article 5(3) applies and the plaintiffs are entitled to sue
the first defendant in respect of the publication of the words in Northern
Ireland. I accordingly hold that the first defendant is not entitled to an
order setting aside service of the writ of summons upon him.
I turn then to the question of the discretion of the court to stay the action
on the ground of forum non conveniens, a jurisdiction which is expressly
preserved by section 49 of the 1982 Act. The second defendant was not
a party to the summons, and did not appear at the hearing. Indeed, it
may be observed that the summons sought only that the writ of summons
and service thereof in so far as it affects the first defendant should be
set aside, and made no reference to a stay on the around of forum non
conveniens, although that issue was the subject of some of the contents
of the grounding affidavits. The first defendant asked the court to grant
a stay of the action only as against himself, not the whole action as
against both defendants. There is little express authority to be found in
the reported cases or text books on the power of the court to grant such
a partial stay, but it may be seen that applications of this nature were
entertained without objection or question being raised in Charm Maritime
Inc v Kyriakou and Matthias [1987] 1 Lloyd's Rep 433, EI du Pont de
Nemours & Co v Agnew [1987] 2 Lloyd's Rep 585, Meadows Indemnity Co
Ltd v The Insurance Corporation of Ireland plc [1989] 1 Lloyd's Rep 181,
affd [1989] 2 Lloyd's Rep 298, and The Rewia [1991] 1 Lloyd's Rep 69. It
would therefore appear possible in principle for the court to grant such a
stay, though, as I shall set out in a moment, practical objections militate
against its doing so.
The governing principle, expressed by the House of Lords in Spiliada
Maritime Corporation v Cansulex Ltd, The Spiliada [1987] AC 460, is that
the court will choose that forum in which the case could be tried more
suitably for the interests of all parties and for the ends of justice. The
burden is on the party seeking the stay to show that the court should
exercise its discretion in his favour. The court will look for that forum
with which the action has the most real and substantial connection,
taking into account, for example, convenience and expense, availability
of witnesses and the places where the parties reside. The decision is one
within the discretion of the judge hearing the application, applying the
proper principles to the facts. I should mention at this point that it is for
me as a judge hearing an appeal from a master to exercise my discretion
afresh, unfettered by the previous exercise of the master's discretion: see
Evans v Bartlam [1937] AC 473, 478, per Lord Atkin.
The first defendant relies on several matters, as set out in the affidavits
sworn by Mr Brett and Mr Harvey. They are conveniently set out in
paragraphs 7 and 8 of Mr Brett's affidavit:
"7 I believe the Plaintiffs are precluded from bringing these proceedings
against Lord O. in Northern Ireland. At the very least the Court has a
discretion to consider which is the appropriate forum for the trial of this
action ie (in the words of Lord Goff in Spiliada Maritime Corporation v
Cansulex Ltd) in which jurisdiction the case may be tried more suitably
for the interest of all the parties and the ends of justice. I respectfully say
that applying that test, it is clear that England is the appropriate Forum. I
outline some of the relevant considerations:
(a) Firstly, the Defendant is domiciled in England and has never been in
Northern Ireland. The Plaintiffs are domiciled in Northern Ireland but have
clients in both jurisdictions.
(b) Secondly, the Plaintiff is 76 years old and in poor health. He may
perhaps be able to give evidence in a court in London but would be
quite unable to travel to Northern Ireland. If evidence on commission is
required it will have to be taken in England. The Plaintiffs on the other
hand are in the prime of life. Furthermore it is understood that only one
of them was involved in the conduct of the defence of C.. He would have
neither difficulty nor apprehension about travelling to England, in contrast
to Lord O..
(c) Thirdly, the alleged words complained of were uttered in England.
(d) Fourthly, it is Lord O.'s intention, if and when the appropriate stage
is reached, to plead that in so much as any words used by him were a
statement of fact, they were true, and in so far as they were comment
they were fair comment in a matter of public interest. He will also rely on
a defence of qualified privilege. Justification of any remarks made by him
which were facts will relate heavily to the circumstances of the death of
K: and the presentation of the forensic evidence at the trial of C. on his
behalf. At the present time, it is anticipated that it will be necessary to
call:
(…)
(iii) C.
(…)
(e) To the best of my knowledge and belief all these persons are domiciled
in England. A number of them are serving members of Her Majesty's
Forces and special arrangements would still need to be made for them to
appear in a court in Northern Ireland.
(f) The witnesses who may be called on behalf of the Plaintiffs in this
regard would seem to be the relevant partner in the Plaintiffs practice and
the expert witness who was in fact called at the trial who is also based in
England as I understand it. It would therefore be much more appropriate
from the point of view of witnesses for the matter to be tried in England.
(g) Fifthly, the Plaintiffs have a right to seek trial by a jury in Northern
Ireland. This jury would be asked to decide between a Northern Ireland
solicitor and the first Defendant. The first Defendant is not only English
and a peer, but a former officer in the Parachute Regiment and the
Chairman of the C. Committee. The court must ask itself whether it would
be feasible to empanel either at all or by normal methods a jury in Belfast
which will try this action impartially in the light of the first Defendant's
circumstances. The role of the Parachute Regiment in Northern Ireland
has been a matter of great and continued public controversy. As recently
as 23 October 1995 the Member of Parliament for West Belfast, Dr H., was
condemning an announcement that the Parachute Regiment would serve
again in Northern Ireland because of his view of the perception of that
Regiment in certain sections of the community.
8 I respectfully say that the first Defendant could not be confident of a
fair trial on these issues before a Belfast jury. It would be the duty of his
advisors if facing such a situation to seek to challenge jurors for cause
to establish the degree of knowledge and partiality or prejudice they
may have towards those connected with C., those connected with the
Parachute Regiment and towards English peers. Such a legitimate desire
to ensure a neutral jury could prolong and add to the expense of the
trial."
Mr Harvey supplements this by exhibiting a letter from a consultant
cardiologist, stating that after cardiac failure Lord O. had a cardiac
pacemaker implanted, and questioning his ability to withstand a
prolonged trial. In paragraph 8 of his affidavit Mr Harvey also expresses
doubts about the ability of a Belfast jury to consider fairly and impartially
the issues that will arise at the trial of this action.
The plaintiffs' counsel pointed to a number of contrary factors. If Lord O.'s
health may not be good enough to withstand a long trial, the location of
the forum will not make any difference in that respect. Nor has it been
shown why it would be markedly easier for him to travel to London by
rail or car than to fly to Belfast. Several of the witnesses specified in Mr
Brett's affidavit are serving members of the Armed Forces, and could as
readily come to Belfast as to London. It is also likely that there will be
other witnesses from within Northern Ireland. The plaintiffs vigorously
disputed the validity of the suggestion that the first defendant would
be unlikely to obtain a fair trial from a jury in Belfast. It might well be
that some jurors on the panel would hold the prejudices of which the
deponents speak, but equally others could be just as strongly disposed in
favour of C. and his supporter the first defendant. Moreover, the plaintiffs
were acting for C. in the criminal proceedings, and if any jurors are
predisposed against C. that gives them no reason to favour the plaintiffs
as against the defendants. Much may depend on the composition of the
jury, but I am not myself willing to hold that the risk of prejudice against
the first defendant if the action is tried in Belfast is as serious as his
counsel contend.
In my judgment the strongest factor in favour of not staying the action
is the fact that if I were to order a stay as against the first defendant
the action against the B. would still continue in Northern Ireland, and
the same issues would be tried in two different jurisdictions by separate
tribunals of fact. In consequence there would be a considerable increase
in costs and inconvenience, and the division of the trials would give rise
to the risk of inconsistent verdicts. It would in my view be undesirable to
create this risk unless it is shown to be necessary: cf The Rewia [1991]
1 Lloyd's Rep 69, 75, per Sheen J. Moreover, if the plaintiffs succeeded
in establishing liability in respect of the words set out in both paragraph
3 and paragraph 4 of the statement of claim, it would be more difficult
for separate juries in different jurisdictions to attribute damages to each
libel than for a single jury hearing the whole claim. It is true that if the
principle in Shevill v Presse Alliance SA is correctly to be regarded as
part of our law, the plaintiffs would have to bring separate proceedings
in other countries of the United Kingdom in respect of any damage which
they may have sustained in those countries. But those proceedings would
be of lesser consequence, since the plaintiffs' practice is in Northern
Ireland, where they all reside, and if they have sustained damage it will
have been greatest in this jurisdiction. It seems to me to be no less than
just that they should be able to concentrate their major proceedings in
the jurisdiction where, if they succeed in their claim, the tribunal of fact
will be able to appreciate most accurately the effect of the publication
upon them.
Balancing these factors, I conclude that the first defendant has not shown
a sufficient case in favour of staying the action as against him and I
therefore allow the appeal, reverse the master"s order and dismiss the
summons.