DRAKE J: This is an application by the Defendants to stay these
proceedings on the grounds of forum non conveniens. The Defendants say
that the appropriate forum is Scotland.
The Plaintiff opposes the application, first, on the ground that the Court
has no jurisdiction to stay on the grounds of forum non conveniens. It
is said that the Civil Jurisdiction & Judgments Act 1982 removed the
jurisdiction of this Court to decide the appropriate forum as between
different parts of the United Kingdom. If that submission fails then the
Plaintiff opposes the application on its merits; that is to say, she submits
that England is the more appropriate forum.
I deal first with the question: does this Court have jurisdiction to stay on
the grounds of forum non conveniens? The submissions for the Plaintiff
are as follows.
Firstly, the 1982 Act, which with some minor modifications incorporated
the Brussels Convention of 1968 into English Law, removes this
jurisdiction in respect of competing claims both of contracting parties to
the Convention and of different jurisdictions within the United Kingdom.
Secondly, article 1 of the Convention provides that the Convention applies
for all civil cases.
Thirdly, article 2 provides that persons domiciled in the contracting state
should proceed in the courts of that state. The Plaintiff submits that the
Defendants are domiciled in both Scotland and England, where they
had some place of business albeit a minor one. For the purposes of this
application Mr S. for the Defendants concedes that view of domicile.
Section 16 of the Civil Jurisdiction and Judgments Act 1982 provides for
the allocation within the United Kingdom of jurisdiction in certain civil
proceedings, which covers the present proceedings. That allocation is
dealt with by schedule 4 to the Act, which contains a modified version of
certain provisions of the 1968 Convention.
Fourthly, article 2 of schedule 4 provides that persons domiciled in a
part of the United Kingdom shall be sued in a court of that part. As the
Defendants are domiciled in two different parts of the United Kingdom
they may be sued in either of those parts. The choice may be made by
the Plaintiff.
Fifthly, in the present case the Plaintiff has made her choice and to give
any discretion to the Court to interfere with that choice on the grounds of
forum non conveniens would wholly undermine the point of incorporating
the Convention into the Act. Miss R. refers to O'Malley & Layton on
European Civil Practice at 41.02 on pages 979-980.
Mr S. for the Defendants responds to those submissions as follows:
(1) Article 21 of schedule 1 deals with the position where proceedings are
brought in the courts of different contracting states. It provides that any
court other than the court first seised shall, of its own motion, decline
jurisdiction. This, if it applies to England and Scotland, would mean that
if the Plaintiff brought a similar action in Scotland the courts there would
decline jurisdiction.
(2) Schedule 4, on which the Plaintiff's argument is based deliberately
omits article 21. This shows that the Civil Jurisdictions and Judgments
Act 1982 deliberately does not deprive the internal courts of the United
Kingdom of the jurisdiction to exercise discretion on the grounds of forum
non conveniens as between the different parts of the United Kingdom.
(3) The absence of article 21 from schedule 4 is to be considered in
conjunction with s 49 of the Civil Jurisdictions and Judgments Act 1982,
which preserves the powers of the United Kingdom courts to stay on the
grounds of forum non conveniens where to do so is not inconsistent with
the 1968 Convention.
At this point I observe that s 49 may not be of much assistance to
the Defendants since it begs the question whether on the Plaintiff's
submissions the application of forum non conveniens would be
inconsistent with the Convention.
In my judgment the submissions for the Plaintiff are sound and I agree
with Miss R.s' arguments and the position as it is stated in O'Malley
& Layton, at pages 979-980. I consider that Mr S.'s reliance on the
deliberate omission of article 21 from schedule 4 is misplaced since
article 21 deals with lis pendens and not with the general allocation of
jurisdiction within different parts of the United Kingdom. That matter is
provided for by article 2 of schedule 4.
Looking at the matter from a wider viewpoint, I do not find the result is in
any way inconsistent with the general provisions of the Civil Jurisdictions
and Judgments Act 1982. It is clear that the jurisdiction to stay on the
grounds of forum non conveniens was taken away in respect of competing
choices between different states (that is contracting parties within the
European Community) but was left intact in respect of competing choices
between courts of a contracting party and courts of a non-contracting
party. (See In Re Harrods, Buenos Aires Ltd [1992] Ch 72, [1991] 4 All
ER 334. In that case it was held that the Convention was intended to
regulate jurisdiction only as between the contracting states and it was not
inconsistent with the letter or spirit of the Convention for the English court
to stay proceedings on the grounds of forum non conveniens in a case
involving a conflict of jurisdiction between that court and the courts of a
non-contracting state.
But as the Convention applied uniformity of rules as between different
contracting states I think it is inconsistent at least with the spirit and
probably also the letter of the Convention not to apply the same rules as
between different parts of the United Kingdom. Although Scotland and
England are not contracting states they are each part of a contracting
state. It seems to me more logical for the same rules to apply everywhere
within the community including conflicting jurisdictions within the United
Kingdom as one contracting state.
Miss R. put forward a further and alternative submission against the
application of forum non conveniens. This is as follows:-
(1) Article 5(3) of schedule 4 to the Civil Jurisdictions and Judgments Act
1982 provides that a person domiciled in a part of the United Kingdom
may in another part of the United Kingdom be sued "in matters relating to
tort in the courts for the place where the harmful event occurred."
(2) In the present case the Plaintiff claims to have suffered damage in
both England and Scotland since it is accepted that publication of the
alleged libel was in both countries. In such a case the Plaintiff may choose
in which jurisdiction she will sue. (See Handelskwekerij GJ Bier BV v Mines
de Potasse d'Alsace [1978] QB 708, at 729G and 730, a decision of the
European Court of Justice). The fact that the publication, and therefore
perhaps the damage, occurred mainly in one jurisdiction is irrelevant.
(See Shevill v Presse Alliance SA [1992] 1 All ER 409, [1992] 2 WLR 1,
where the publication in the chosen jurisdiction was minimal).
Mr S. responds that article 5(3), whilst providing a basis for alternative
jurisdiction, does not in any way interfere with the right of the English
court to consider forum non conveniens. In my judgment Miss R.s'
submissions are again to be preferred, and on that basis I also decline to
consider ordering a stay. Mr Suttle nevertheless has asked me to rule on
the merits of his submissions on forum non conveniens, which I will do.
It is common ground that the correct approach to this question is to
be found in the speech of Lord Goff in Spiliada Maritime Corporation v
Consulex Ltd [1987] AC 460, [1986] 3 All ER 843. Mr S. has summarised
the essential points in his skeleton argument. I will only refer to them in
even more summary form as follows.
First, a stay will only be granted where the court is satisfied that there is
some other available forum of competent jurisdiction in which the case
may be tried more suitably for the interests of all the parties and the
interest of justice.
Second, initially the burden is on the Defendant.
Third, the court must consider whether there are connecting factors
which point to some other forum being more appropriate. Matters to be
considered include convenience, expense, the law affecting the subject
matter of the action and the place where the parties respectively reside or
carry on business.
If the Defendant discharges this initial burden the court will normally
grant a stay unless the Plaintiff can show that there are nevertheless
some circumstances by reason of which the stay should not be granted.
On this matter the court should consider all the circumstances of the case.
Factors which in my judgment affect the present case include:-
First, the Plaintiff resides and carries on much, but not all, of her work
in Scotland. The First Defendants are very much a Scottish concern and
have only minimal business activities in England. They may technically be
domiciled in England as well as Scotland but for all practical purposes they
are Scottish. The Second Defendant is solely domiciled in Scotland.
Second, the damage which the Plaintiff claims she suffered is prima
facie likely to have been principally in Scotland since about 90% of the
circulation of the newspaper was in Scotland. However, the article is about
the Soil Association, which is based in Bristol and of which the Plaintiff is
Chairman, albeit she directs it mainly from Scotland. Further, and perhaps
more importantly, the article states that most of the 25 tonnes of meat
which is the principal subject matter of the article was sold in Sainsburys.
It seems likely that a very large proportion was sold in England. The
article states that the cattle were reared in Scotland. In my judgment the
place of sale to the public (ie Sainsburys) is more important than the farm
on which the cattle were reared.
Third, the Defendants' usual solicitors are based in Scotland. The
Defendants say that the Plaintiff's principal potential witnesses to deal
with justification will be Scottish and based in Scotland but the Plaintiff
says that most of her witnesses dealing with damages will be from
England.
Four, the Defendants place considerable emphasis on the fact that the
Plaintiff has not confined her claim to publication and damage in England;
it also extends to the very major part of the publication (about 90% of the
newspapers) which was in Scotland. Miss R. for the Plaintiff said that if
that were a major factor in favour of a Scottish forum the Plaintiff would
rather restrict the claim to the publication in England. In my judgment
the fact that the Plaintiff has not confined her claim to England is an
important factor. The Plaintiff has not yet abandoned reliance upon the
publication in Scotland and I think I must at present deal with the facts as
they now stand.
I find the connecting factors in this case are fairly evenly balanced
but with a small but quite definite tilt in favour of a Scottish forum.
The fact that the English court will be dealing with a publication which
was about 90% or more in Scotland is, as I have already said, in my
judgment an important factor. If the claim had been restricted to the
English publication it would have tilted the scales in favour of the
English jurisdiction. Had I not found in favour of the Plaintiff on the Civil
Jurisdictions and Judgments Act 1982 issue I would have given Miss R.
the opportunity to amend the claim, albeit probably with some penalty in
costs. But having found for the Plaintiff, Miss R. will have the opportunity
to reconsider the inclusion of the publication in Scotland before the matter
is reconsidered, as may well be the case, in a higher court. However, as
I have decided the application in favour of the Plaintiff the Defendants'
application must be dismissed.