Kennedy v The National Trust for Scotland

The Brussels jurisdiction regime does not prevent an English court from staying a claim in favour of Scotland. Both are courts of the same Member State, and a wholly intra-UK dispute lacks the international element required to engage that regime.

A court exercising domestic special jurisdiction in tort may award compensation only for harm suffered within its jurisdiction. Full compensation remains available in a court of general jurisdiction. This territorial limit extends to data protection claims concerning personality rights.

For a claim form posted to Scotland, actual delivery within the six-month validity period constitutes timely service. The deemed date under the Civil Procedure Rules 1998 governs subsequent procedural steps and does not shorten that period.

Mr Kennedy sued the National Trust for Scotland in England for defamation, negligence and breach of the Data Protection Act 1998. The claims arose from a press release denying that a nude commercial photo shoot at a Scottish castle had been authorised. He sought relief for alleged harm in England and Wales, Scotland, Italy, France and Brazil.

Sir David Eady held that the claim form had been validly served, but stayed the proceedings because Scotland was clearly the more appropriate forum. He also held that any English claim proceeding under domestic special jurisdiction would be confined to harm suffered in England and Wales: [2017] EWHC 3368 (QB); [2018] EMLR 13.

Mr Kennedy appealed against the stay and the ruling on global damages. The National Trust cross-appealed on service.

1. Appeal and cross-appeal dismissed. The court upheld the stay in favour of Scotland, the conditional ruling limiting the English claim to local harm, and the ruling that the claim form was validly served.
2. Owusu v Jackson did not establish that forum non conveniens is unavailable whenever the Brussels regime is engaged. It prevents a court from declining mandatory jurisdiction conferred on a Member State in favour of a non-Member-State forum. A transfer between England and Scotland does not conflict with article 4(1), since either forum is a court of the defendant's Member State of domicile. In any event, the claim against one Scottish defendant involved only competition between UK jurisdictions and lacked the necessary international element. Hypothetical foreign co-defendants did not alter the claim as constituted.
3. The judge was entitled to find Scotland clearly the more appropriate forum. His evaluative decision reflected all the connecting factors, including domicile and the Scottish courts' ability to determine every cause of action and all alleged harm. No significant error justified appellate intervention.
4. The domestic special jurisdiction in Schedule 4 to the Civil Jurisdiction and Judgments Act 1982 reflected the territorial approach in Shevill, with necessary domestic modifications. An English court exercising special jurisdiction could determine only harm suffered in England and Wales. Full compensation remained available in a court of general jurisdiction. The same limitation applied to the data protection claim because it concerned a personality right involving freedom of information and privacy.
5. Posting the claim form to Scotland engaged the six-month rule for service outside the jurisdiction. It was validly served when delivered on the final day. CPR r 6.14's deemed date applies only when calculating subsequent procedural steps; it does not determine service within the claim form's validity period. Retrospective validation therefore did not arise.

• Court of Appeal (Civil Division): Dismissed Mr Kennedy's appeal against the stay and conditional global-damages ruling, and dismissed the National Trust's cross-appeal on service: [2019] EWCA Civ 648.
• High Court, Queen's Bench Division: Sir David Eady held that the claim form had been validly served, stayed the claim in favour of Scotland, and held that any English proceedings under special jurisdiction would be confined to harm suffered in England and Wales: [2017] EWHC 3368 (QB); [2018] EMLR 13.