Defamation, Jurisdiction & Forum Non Conveniens

Howard Kennedy pursued a claim against the National Trust for Scotland (“NTS”) arising from a publication by the NTS of a statement and press release which he alleged are defamatory.

Mr Kennedy started proceedings in England. NTS, contesting the claim, pleaded that England was not the appropriate jurisdiction for the claim and invited the court to make a finding of forum non conveniens (a doctrine where the court may refuse to take jurisdiction of a claim if there is a more appropriate court available to the parties). NTS argued that it is an entity based in Scotland, the statement had been published in Scotland (as well as the rest of the UK and other countries) and the act that gave rise to the statement also occurred in Scotland.

NTS were successful in their application and the High Court in England held that the doctrine of forum non conveniens applied and that the claim should be stayed on the basis that the Scottish courts were clearly the most appropriate forum for the claim to be determined.

Mr Kennedy appealed arguing that EU law and previous case law prevented the application of forum non conveniens. The relevant EU Regulation (Regulation 1215/2012 “Brussels Recast”) provides, subject to some exceptions, that a person living in an EU Member State should be sued in their own Member State. Mr Kennedy, who lives in England, essentially argued that because of the supremacy of EU law the domestic courts were precluded from exercising their discretion, under existing UK legislation, to make a finding of forum non conveniens because the doctrine was inconsistent with the Regulation. Therefore, Mr Kennedy argued the High Court should not have stayed proceedings.

The Court of Appeal sensibly noted that there was no real conflict between EU and domestic law as Mr Kennedy alleged. The EU Regulation did not apply in this instance. Scotland and England are indeed separate legal jurisdictions but are still all part of the same Member State. The Regulation was not designed or intended to apply to internal jurisdictions within the UK. Therefore, the High Court was justified in making a finding of forum non conveniens and staying the claimant’s claim. A finding of forum non conveniens within the UK was consistent with current UK law.

Defamation in Scotland — Reform

This claim comes against the backdrop of the Scottish Government’s ongoing consultation to overhaul the law of defamation in Scotland.

Defamation law was substantially overhauled in England and Wales by the Defamation Act 2013 while Scots Law largely maintained its own system of statutory and common law rules. Unsurprisingly, given the small number of defamation cases that have come before the courts in recent years, developments in Scottish law have been heavily influenced by English case law.

The English legal reforms where introduced, at least partially, due to England and Wales becoming the favoured destination for those wishing to bring defamation claims (forum shopping). Some predicted that Scotland, which maintains a defamation law similar to the old English system, would become the new destination of choice for forum shoppers. However, nothing of the sort transpired. In fact, reform of Scottish defamation law has been, instead, triggered by the huge changes in the use of the internet and social media, which were of little consequence when the law was last reviewed in 1996.

The Scottish Law Commission has made extensive recommendations to radically reform the current law which the Scottish Government has already largely endorsed in its draft Bill (“the draft Bill”) and which is now subject to consultation. The reforms reflect the experience in England and Wales, to some extent, since their own reform process.

Whilst there has been widespread consensus on the need for radical reform, not all aspects of the draft Bill have been universally welcomed. The Faculty of Advocates (“the Faculty”), in its response to the Scottish Government consultation, has criticised the introduction of a “serious harm” test into defamation law. This, in the view of the Faculty, is a somewhat problematic doctrine with the primary function to weed out potential claims before they come to the courts. The Faculty points out that there is no overload of defamation cases in Scotland which would appear to nullify the need for the test.

The Faculty also criticised the greater protection afforded to “secondary publishers” (those not making but distributing a defamatory statement) which, in their view is an unwarranted expansion of existing protections where “innocent” distributors have a defence in defamation proceedings. The faculty sees the introduction of a blanket protection as unmerited.

For any further information regarding any aspect of the issues raised in this case, please contact Pamela Stevenson, Partner 0141 375 0867 or email pamela.stevenson@weightmans.com