Lennon v Scottish Daily Record & Sunday Mail Ltd

In an application to stay an English libel claim in favour of Scotland, the court applied the Spiliada approach. The defendant had to show that Scotland was clearly or distinctly the more appropriate forum and that trial there would better serve the parties’ interests and the ends of justice. A perceived advantage in damages in one jurisdiction was relevant but not decisive. The place of publication and the claimant’s reputation in England were substantial connecting factors. On meaning, the judge must delimit the range of meanings reasonably capable of being conveyed, exercising generosity rather than parsimony. An inferred defamatory meaning may be rejected where only an unduly suspicious and unreasonable reader could adopt it.

The claimant, a Celtic footballer, brought an English libel claim against the publisher of the Daily Record concerning articles published in England on 20 December 2002. The articles reported an alleged assault and robbery of a photographer by Celtic players and included material referring to the claimant.

The defendant applied for a stay on forum non conveniens grounds, contending that Scotland was the more appropriate forum. Alternatively, it contended that the words were incapable of bearing the pleaded meanings that the claimant had committed, or was highly likely to have committed, the robbery. The court had to determine the appropriate forum and the permissible range of meanings.

1. Forum. The application for a stay was dismissed. Under the Spiliada principles, the defendant bore the initial burden of establishing an available alternative forum which was clearly or distinctly more appropriate. If that was shown, the claimant could still resist a stay by demonstrating circumstances requiring justice to be done in England.
2. The Civil Jurisdiction and Judgments Act 1982, as amended, did not remove the court’s power to stay proceedings between England and Scotland. The Brussels and Lugano frameworks, and the Judgments Regulation, allocated jurisdiction between Member States. England and Scotland were separate jurisdictions but parts of the United Kingdom. Section 49 of the 1982 Act therefore preserved the forum non conveniens jurisdiction where its exercise was not inconsistent with those instruments.
3. A possible juridical advantage, including higher damages in England, was not decisive. The court had to consider the interests of all parties and the ends of justice. Relevant connecting factors included the place of publication, the applicable law, the location of witnesses and evidence, and the parties’ connections. Here, substantial publication and the claimant’s reputation in England pointed towards England. A stay would realistically lead to a different Scottish action rather than trial of the English publication sued upon.
4. On meaning, the judge’s task was to identify the range of meanings of which the words were reasonably capable. The court should adopt the natural and ordinary meaning, avoid strained interpretation and over-elaborate analysis, and approach the exercise with generosity. The articles were capable of conveying that the photographer had been robbed and that the claimant had chased him. They were not capable of conveying that the claimant himself committed the robbery, because only an unduly suspicious and unreasonable reader could reach that conclusion. The lesser pleaded meaning that robbery by the claimant was highly likely was nevertheless within the permissible range.