In the Action the Plaintiff claimed damages for libel as a result of two
newspaper articles published by the Defendants and which appeared in
editions of their newspaper on the 17th and 24th days of March, 1991,
respectively.
The first named Plaintiff is the majority shareholder in the second named
Plaintiff which in turn controls the third and fourth named Plaintiffs both of
which are engaged to the Telecommunications industry. The fourth named
Plaintiff is a company incorporated in the United Kingdom.
The Defendant is the publisher of "The Sunday Times" and has its
registered office and principal place of business in the United Kingdom.
The Plaintiffs Plenary Summons, which issued on the 27th day of March
1991 and was addressed to the Defendants at their London office bore the
following endorsement: -
1. "The Court has power under the Jurisdiction of the Courts and
Enforcement of Judgments (European Communities) Act, 1988 to
hear and determine the Plaintiffs' claim and the Court should assume
jurisdiction to hear the said claim under the provisions of Article 5 (3) of
the Brussels Convention on jurisdiction and enforcement of Judgments in
civil and commercial matters, 1968.
2. No proceedings between the parties concerning this cause of action are
pending between the parties in any other contracting state".
This endorsement was required by Rule la of the Rules of the Superior
Courts which is as follows: -
1 a. "Where an endorsement of claim on an originating Summons
concerns a claim which by virtue of the 1988 Act, the Court has power to
hear and determine, the following provisions shall apply:
1. The originating Summons shall be endorsed before it has issued with
a statement that the Court has power under the 1988 Act to hear and
determine the claim and shall specify the particular provision or provisions
of the 1968 Convention under which the Court should assume jurisdiction
and
2. The originating Summons shall be endorsed before its issue with a
statement that no proceedings between the parties concerning the same
cause of action is pending between the parties in another contracting
state..."
THE BRUSSELS CONVENTION.
Title II of the Brussels Convention deals with 'Jurisdiction'. Section I of
Title II lays down the general rule that persons domiciled in a Contracting
State should be sued in that State whatever their nationality. Section 2
of Title II provides for certain exceptions to the general rule under the
heading of "Special Jurisdiction".
Article 5.3 which appears in Section 2 provides as follows: -
"А person domiciled in a contracting state may, in another contracting
state, be sued: ...
3. In matters relating to Tort, delict or quasi delict in the courts of the
place where the harmful event occurred;..."
In context the words "harmful event" mean both the publication of the
alleged libel and any damage (including special damage) alleged to How
from it.
ЅТАТЕМЕNТ OF CLAIM.
The Plaintiffs Statement of Claim was delivered herein on the 28th day
of March, 1991. This was before the Defendant's entry of an appearance
which did not take place until the 15th day of April, 1991.
The Statement of Claim, having first described the Plaintiffs, went on to
plead as follows: -
4. "The Defendant is the publisher of the weekly Newspaper called "The
Sunday Times" which has a large circulation throughout Ireland, in the
United Kingdom and elsewhere. The Defendant publishes a special Irish
edition which circulates principally in Ireland. The main, or English edition
of the said Newspaper also circulates in Ireland and will be referred to as
"The English Edition ".
5. On the 17th day of March, 1991 the Defendant falsely and maliciously
published or caused to be written, printed and published, on the front
page and on page 5 of the Irish edition of the said newspaper dated that
day, of and concerning the Plaintiffs and of and concerning the Plaintiffs'
in the way of their aforesaid businesses, the words following, that is to
say;..."
The Statement of Claim then sets out the text of the first article
complained of.
The Statement of Claim then continues (at paragraph 6) as follows: -
6. "On the 17th day of March, 1991, the Defendant falsely and maliciously
published or caused to be written, printed and published, on the front
page and on page 5 of the English edition of the said newspaper dated
that day of and concerning the Plaintiffs and of and concerning the
Plaintiffs in the way of their aforesaid businesses, the following words,
that is to say-..."
The Statement of Claim then sets out the text of the second article
complained of.
Paragraph 7 of the Statement of Claim sets out what the Plaintiffs alleged
are the natural and ordinary meanings of the words contained in the
said articles. Paragraph 8 set outs the text of a further newspaper report
complained of by the Plaintiffs and published on the 24th day of March
1991 in the Irish edition of their newspaper. Paragraph 9 sets out what
the Plaintiffs allege are the natural and ordinary meanings of the words
contained in the said newspaper report.
The Statement of Claim then continues as follows at paragraph 10: -
10. "Ву reason of the premises the Plaintiffs have been injured in their
credit and reputation and have been brought into public scandal odium
and contempt".
11. Further, by reason of the premises, the Plaintiffs have suffered and
sustained loss and damage which cannot be quantified until the full effects
of the publication of the aforesaid articles can be assessed".
The Statement of Claim then went on to claim damages including
aggravated and exemplary damages.
Had this claim been brought under the old procedure, it would have been
necessary to apply for service out of the jurisdiction on the basis that the
matters complained of were Torts committed within the jurisdiction by a
person resident out of the jurisdiction. (See Rules of the Superior Courts
Order 11 Rule paragraph (f). This leave would only have been granted
in respect of a libel published within the jurisdiction. (See Gatly on Libel,
Seventh Edition page 45).
The Statement of Claim appears on it's face to be consistent with a claim
for damages in respect of the publication in Ireland in the Irish and in the
English editions of the Sunday Times of material alleged be defamatory of
the Plaintiffs.
But the important point is that the proceedings were brought under
Article 5.3 of the Brussels Convention and Article 5.3 confers a special
jurisdiction on "The Courts for the place where the harmful event
occurred".
The correct interpretation of this phrase may have given rise to difficulty
but this difficulty has now been removed by the decision of the European
Court in Shevill v. Presse Alliance SA (1995 ECR page 450) where the
Court said (at page 462 of its judgment): -
31 "In accordance with the requirement of the sound administration
of justice the basis of the rule of special jurisdiction in Article 5(3), the
courts of each Contracting State in which the defamatory publication was
distributed and in which the victim claims to have suffered injury to his
reputation are territorially the best placed to assess the libel committed in
that State and to determine the extent of the corresponding damage.
32. Although there are admittedly disadvantages to having different
courts ruling on various aspects of the same dispute, the plaintiff always
has the option of bringing his entire claim before the courts either of
the defendant's domicile or of the place where the publisher of the
defamatory publication is established.
33. In light of the foregoing... 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 by 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".
In the light of the foregoing it appears to me that the Plaintiff's claim
being a claim expressed to be made under Article 5.3 of the Brussels
Convention must be regarded as a claim brought in respect of damage
alleged to have been suffered in Ireland arising out of the publication
in Ireland of the alleged defamatory material. When therefore the
Defendants entered an appearance to the Plaintiffs claim they must be
regarded as entering an appearance to this claim and not to any other.
ARTICLE 18.
Nevertheless much discussion took place in the Court below and in this
Court on the effect of the Defendants having entered an unqualified
appearance and of the implications of Article 18 of the Brussels
Convention. Article 18 reads as follows: -
"Apart from jurisdiction derived from other provisions of this Convention,
a Court of a Contracting State before whom a Defendant enters an
appearance shall have jurisdiction. This Rule shall not apply where
appearance was entered solely to contest the jurisdiction, or where
another Court had exclusive jurisdiction by virtue of Article 16".
Article 16 has no relevance to the circumstances of the present case.
Article 18 undoubtedly raises the issue that if a Defendant wishes to
dispute the jurisdiction of the Court to entertain the claim it should enter
a qualified appearance either solely or in the alternative. If it enters an
unqualified appearance it may be held to have accepted the jurisdiction of
the Court. But it appears to me that if a Defendant enters an unqualified
appearance he only accepts the jurisdiction of the Court to entertain the
case which has been formulated against him by the Plaintiff in his Plenary
Summons or Statement of Claim. In the present case the Defendant
entered an appearance to meet a claim under Article 5 Section З of
the Brussels Convention and it does not appear to me that such an
appearance can be held to be an acceptance by the Defendant of the
jurisdiction of the Court to hear claims other than claims under Article 5
Section 3 of the Convention.
It is for the Plaintiff to formulate his claim. If the Plaintiffs in the present
case had made clear on the face of their Statement of Claim that they
were claiming in respect of publication made or damage suffered in the
United Kingdom they would have put the Defendants on guard as to
whether they, the Defendants, wished the Irish Courts to have jurisdiction
to entertain these claims. But no such claim was clearly made by the
Plaintiffs in the present proceedings. In the circumstances, and in the
light of the history of this matter and of the present law, the Defendants
were entitled to assume that the claim was in respect of a libel published
in Ireland. In short if the Plaintiffs wished to go outside the 'Special
Jurisdiction' which they had invoked as a justification for instituting these
proceedings in Ireland they should have made this fact plain on the face
of the Statement of Claim.
Even had the Defendant, by entering an unqualified appearance,
mistakenly submitted to jurisdiction in the Irish Courts to entertain claims
in respect of publication made or damage suffered in the United Kingdom
the situation would not, it appears to me, have been without remedy. This
is clear, if only by implication, from the dictum of Finlay, C.J. in Campbell
v. Van Art (1992) 2 Irish Reports page 305. The dictum reads as follows: -
"In these circumstances, I am quite satisfied that where the Defendant
does not establish that he intended anything other than a plain or
unconditional appearance, and where such was entered and where such
a lapse of time as this occurred, and there could be no conceivable
justification for relieving him from any mistake, and he has not asserted
а mistake in that time, that in those circumstances the provisions of the
first part of Article 18 have been satisfied by the facts..."
Despite the fact that the learned trial Judge accepted that the original
claim of the Plaintiffs was a claim under Article 5.3 of the Brussels
Convention he appears to have taken the view that the Defendants by
their delay after the entry of an appearance had forfeited their right to
exclude claims made outside the terms of Article 5.3 such as claims made
in respect of damage suffered in the United Kingdom or in respect of
publication made in the United Kingdom. In doing this he appears to have
applied a discretion proper to a case where a Defendant has mistakenly
entered an unconditional appearance to a case where a Defendant has
correctly entered an unconditional appearance but objects to attempts by
the Plaintiffs, at a subsequent stage, to extend the scope of their claims.
It is true that the Defendants did take certain procedural steps in the
Action (by entering a defence, by discovery and by particulars) after the
entry of the appearance. But these steps were referable to claims properly
before the Court. It first became clear from the reply of the Plaintiffs to
the Defendants Notice of Particulars on the 9th February, 1993 that the
Plaintiffs were seeking to extend the scope of the claim. In that letter, in
reply to a query raised by the Defendants on the 17th June, 1991, the
Plaintiffs answered, inter alia: -
"Тhe Plaintiffs business in the United Kingdom has suffered and continues
to suffer considerable damage and loss".
The Defendants wrote a further letter for particulars dated 15th
September, 1994 which contained, at paragraph 15, the following
demand: -
"Please confirm that the Plaintiffs claim herein is confined to any damage
alleged to have been suffered by the Plaintiffs as a result of publication
within this jurisdiction only".
To this the Plaintiffs replied by letter dated the 14th November, 1994 as
follows: -
"The Plaintiffs claim is not confined to the damage suffered by them as a
result of publication within this jurisdiction only".
From then on there could be no doubt that the Plaintiffs were attempting
to claim damages in respect of a Tort alleged to have been committed
in the United Kingdom. Whether they could make such a claim when it
had not been clearly made on the face of the Statement of Claim, is, of
course, another matter.
The learned trial Judge clearly took the view that there had been
excessive delay on the part of the Defendants in moving to strike out the
fourth named Plaintiffs claim herein on the grounds that, being based
on a libel alleged to have been published in the United Kingdom the
Courts of this country had no jurisdiction under the Brussels Convention
to entertain it.
There is no doubt that there was significant delay on the part of the
Defendants in moving to strike out the claim referred to. They were
fully aware of the extent of the Plaintiffs claim from the date on which
they received the Plaintiffs letter of the 14th November, 1994 and they
certainly had some intimation of it from the Plaintiffs reply to particulars
dated 9th February, 1993. The Defendants sought to explain this delay in
an Affidavit from their legal Manager Mr. Antony Whitaker. At paragraph 6
of an Affidavit sworn on the 20th September 1995 Mr. Whitaker swore: -
"I should point out that the Defendants said letter for particulars is dated
17th June, 1991 and it was not until the elapse of more than a year and
a half that the Plaintiffs Solicitors purported to furnish replies thereto by
letter dated 9th February, 1993. I say that subsequent to receipt of the
replies, the Defendant took Counsel's opinion both in the United Kingdom
and in the Republic of Ireland, and was advised to seek further and better
particulars, as are set out in the letter dated 15th September, 1994,
before proceeding with this application..."
The learned trial Judge was not impressed by this explanation as it does
not purport to explain the delay between the 14th November, 1994 and
the bringing of the Defendants Notice of Motion on the 21st March, 1995.
It was apparently suggested in the High Court on behalf of the Plaintiffs
that the reason for the delay in bringing the application was that the
Defendant waited until the Statute of Limitations had run against any
claim for libel which the Plaintiffs might have against the Defendant in
the United Kingdom. It was further alleged that the Statute had in fact
run against the Plaintiffs some few days before the issue of the Notice of
Motion.
We now know that both these allegations were incorrect. From an
Affidavit as to law filed in this Court pending appeal and sworn by a
member of the English Bar we know that the Statute in fact ran against
the Plaintiffs claims against the Defendants on the 17th and 24th March,
1994 respectively and that while the English Courts have a certain
discretion to extend the statutory period this discretion is most unlikely to
be exercised in favour of the Plaintiffs in the circumstances of the present
case. Whatever the explanation of the delay therefore there was nothing
sinister about it. In fact it would appear that when the Plaintiffs first made
clear in their letter of November 14th, 1994 that they were claiming in
Ireland in respect of a tort alleged to have been committed in the United
Kingdom the Statute had already run against them in the latter country.
The fact of the matter is that there has been considerable delay on
both sides in this case. The proceedings began with a certain flourish
but thereafter a torpor seems to have descended on both litigants. The
Plenary Summons issued on the 27th March, 1991. The Statement of
Claim was delivered on the 28th March, 1991. The Appearance was
entered on the 15th April, 1991. The Defence was delivered on the 21st
June, 1991. On the other hand the Defendants letter for particulars dated
17th June, 1991 was not answered by the Plaintiffs until the 9th February,
1993 - a delay of more than eighteen months. The Plaintiffs Notice of
Particulars dated the 1st April, 1993 was not replied to by the Defendants
until the 16th November, 1993 - a delay of more than six months. The
Defendants second letter for particulars dated the 15th September, 1994
was not replied to by the Plaintiffs until the 14th November, 1994 - a
delay of some two months. Set against this background the Defendants
delay of just over six months in bringing its Notice of Motion to strike out
portion of the Plaintiffs claim does not appear so extraordinary.
In all the circumstances of the case I take the view that the Defendants
are entitled as of right to have the relief claimed by the Plaintiffs limited
to such claim as may properly be brought under Article 5 Section З of
the Brussels Convention and that they did not, by entering an unqualified
appearance, agree to any extension of the Plaintiffs claim, or submit to
any additional jurisdiction in the High Court. The question therefore of
exercising a discretion in their favour does not arise. If however it were
necessary to do so I would be prepared to do so in the circumstances of
this case.
RIGHT OF ЅНАRЕНОLDЕR TO CLAIM FOR DАМАGЕЅ SUFFERED BY
COMPANY.
The Defendant also submits that so much of the claims of the First and
Second named Plaintiffs as relate to special damages are not maintainable
at law and have no reasonable prospect of success and accordingly should
be struck out by the Court pursuant to Order 19 Rule 28 of the Rules of
the Superior Courts and the inherent jurisdiction of the Court. It is said, in
a reply to a Notice for Particulars dated the 9th February, 1993 that: -
"The loss to the Second named Plaintiff is the decrease in value of its
shareholding in the Fourth named Plaintiff which is estimated to be
£21,980,000".
The same reply then goes on to particularise the alleged loss of the First
named Plaintiff in the following terms: -
"The loss to the First named Plaintiff' is the consequent decrease in the
value of the First named Plaintiff's shareholding in the Second named
Plaintiff".
It is argued on behalf of the Defendant that the well known and long
established principle in Foss and Harbottle [1843] 2 Hare 461 precludes
a shareholder suing in respect of a loss suffered by the company in which
the shares are held. The rule in Foss and Harbottle was reiterated by
this Court in recent years in O'Neill v. Ryan & Ors. [1993] ILRM 557. In
his analysis of that rule Blayney, ј., delivering the majority decision of
the Court, recognised that there were exceptions to the rule in Foss and
Harbottle as a result of which a shareholder could in certain events sue in
respect of the loss suffered by his company. However Mr. Justice Blayney
drew attention to the fact (at page 568 of the report) that even in these
exceptional cases of injury to a Corporation "the remedy being given was
a remedy for such injury and not for an injury to the alleged rights of an
individual corporator".
Mr. Justice Blayney firmly rejected the proposition that a shareholder in
a company had a personal action in respect of the reduction in value of
his shareholding resulting from damage to the company against the party
who caused such damage.
In those circumstances the Supreme Court upheld the decision of Lynch,
J. to strike out the Plaintiffs claim on the basis that it was unsustainable.
Mr. Justice Blayney expressly pointed out (at page 571) that: -
"He (Mr. О 'Neill) has по direct remedy against the party alleged to be
guilty of the tort or of the breach of statutory duty".
But there is no question of the claims by the Plaintiffs or any of them
being struck out in the present proceedings. No such relief is sought. It is
accepted by the Defendants that each and everyone of the Plaintiffs has
asserted a stateable cause of action against them. The present application
relates only to a particular heading of damage claimed by the Plaintiffs to
have been suffered by them as a result of a wrong done them and each of
them. To that extent the present case is clearly distinguishable from the
facts in O'Neill v. Ryan & Ors. In those circumstances I would be reluctant
to strike out any aspect of the Plaintiffs claim but would leave it to the
trial Judge to determine what heads of damages, if any, are recoverable
by all or any of the Plaintiffs in the event of any of them succeeding on
the issue of liability.
I would accordingly
(2)Strike out so much of the Plaintiffs claims as are based on libels
alleged to have been published in the United Kingdom, and modify the
Order of the High Court accordingly.
(3) Reserve the balance of the relief claimed by the Defendants in their
Notice of Motion dated the 21st March, 1995 to the learned trial Judge.