Kennedy v The National Trust for Scotland

For service of a claim form in Scotland under CPR r 7.5(2), service must occur within the form’s six-month validity period. CPR r 6.14 changes the date treated as the date of service for procedural purposes; it does not, without clear wording, retrospectively invalidate service or shorten the form’s validity. Retrospective extensions under CPR r 7.6(3) are confined to the specified no-fault circumstances and are unavailable where delay resulted from leaving service until the last moment. In an internal jurisdiction dispute between England and Scotland, the court may stay proceedings for forum non conveniens. The domicile of the parties, the location of the underlying events and witnesses, and the ability of the Scottish courts to determine the whole dispute made Scotland clearly the more appropriate forum.

The claimant, domiciled in Scotland, brought defamation, negligence and data-protection claims in England against the National Trust for Scotland. The claims concerned publications in England, Scotland, Italy, France and Brazil arising from allegations that the claimant had taken nude photographs at Craigievar Castle without authorisation.

The claim form was posted to the defendant’s registered office in Edinburgh shortly before its six-month validity expired. The defendant challenged service, sought a stay on forum non conveniens grounds, and argued that any English proceedings should exclude claims for damage outside England and Wales. The court had to determine the validity of service, the availability of retrospective relief, the statutory and European jurisdictional framework, and the appropriate forum.

1. Service. The claim form was validly served in Scotland before expiry of its six-month validity. CPR r 6.14 deemed service to occur on the second business day after the relevant step, but that fiction concerned the date of service. It did not create a further fiction that the form was invalid when actually served or cut down its period of validity. The court followed the reasoning of Master McCloud in Paxton Jones v Chichester Harbour Conservancy and Flaux J in T&L Sugars Ltd v Tate & Lyle Industries, and declined to adopt the wider observations in Brightside v RSM UK Audit.
2. Retrospective relief. Had service been invalid, relief would have been refused. CPR r 7.6(3) required failure by the court to serve, all reasonable steps by the claimant, and prompt application. Deliberately leaving issue and service until the last moment did not satisfy those conditions.
3. Forum. The Brussels Recast Regulation did not preclude consideration of forum non conveniens because the competing jurisdictions were both within the United Kingdom. Under s 49 and s 16 of the Civil Jurisdiction and Judgments Act 1982, and Schedule 4, Scotland was clearly the more appropriate forum. Both parties were based there; the events, likely witnesses and relevant evidence were principally there; and the Scottish courts could determine all causes of action and the whole damages claim. Substantial justice was available there.
4. Order. Declaratory relief was granted on validity of service. The proceedings were stayed on forum non conveniens grounds. The issue of restricting global damages was therefore academic, although the court indicated that, if the claim proceeded in England, it would be confined to matters within the special jurisdiction.