Kennedy v National Trust for Scotland

The Court of Appeal dismissed the appellant's appeal and the respondent's cross-appeal. The court held that the doctrine of forum non conveniens remained available where the only dispute was internal to the United Kingdom and that the Brussels Recast Regulation did not preclude a stay in favour of Scotland on the facts of the case. The judge below had been entitled to grant a stay because the dispute had real and substantial connections with Scotland and the Scottish courts could deal with the whole of the causes of action and remedies sought. The judge was also right that, had the claim proceeded in England, it should have been confined to damage suffered in England and Wales and any claim for global damages would have been struck out. Finally, the court held that the Claim Form had validly been served on 24 August 2017; rule 6.14 CPR is a deeming provision for procedural steps and did not defeat the temporal validity of service under CPR r 7.5(2) on the facts of this case.

This appeal concerned a defamation, negligence and Data Protection Act 1998 claim arising from a nude photo shoot at Craigievar Castle (Scotland) and subsequent republication of a National Trust for Scotland press release in a range of media, including Scottish and some foreign publications. The claimant sued only the National Trust for Scotland in the High Court in London. The defendant applied to the High Court to strike out or stay the claim on grounds that the English court lacked jurisdiction because service of the claim had not been effected within six months and because Scotland was the clearly more appropriate forum. The claimant cross-applied for validation of late service.

The principal issues before the Court of Appeal were:

• whether the Brussels Recast Regulation (and the CJEU decision in Owusu v Jackson) precluded the English courts from exercising the forum non conveniens discretion where the only competing fora were courts within the United Kingdom;
• whether, if the claim could proceed in England, the English court was limited to awarding damages only for harm suffered in England and Wales or whether it could award global damages;
• whether the Claim Form had been validly served within the six month period under CPR r 7.5(2) given the deeming rule in CPR r 6.14.

The court affirmed the judge below. It held that the Regulation allocates jurisdiction between Member States and does not regulate allocation of jurisdiction within a Member State; therefore section 49 of the Civil Jurisdiction and Judgments Act 1982 and the forum non conveniens discretion could be engaged where only internal UK jurisdictions compete. Even if the Regulation were engaged, article 4(1) would be satisfied whether the claim were heard in England or Scotland because both are courts of the same Member State, so there was no inconsistency with the Regulation. On the global-damages issue the court accepted the judge's analysis that, if the English court's jurisdiction was founded on the special jurisdiction under Rule 3 of Schedule 4, any claim for global damages outside that special jurisdiction should be struck out. On service the court concluded that r 6.14 is a deeming provision intended for fixing dates for subsequent procedural steps; the claimant had chosen the date of actual receipt (24 August 2017) within the six month period and the Claim Form was therefore validly served. The appeal and cross-appeal were dismissed.

Appeal and cross-appeal dismissed. The Court of Appeal held (1) the forum non conveniens discretion was available despite the Brussels Recast Regulation where the only competing fora were within the United Kingdom; (2) on the facts Scotland was the clearly more appropriate forum and a stay was justified; (3) if the claim had proceeded in England it would have been confined to damage suffered in England and Wales and global damages would have been struck out; and (4) the Claim Form was validly served on 24 August 2017 because CPR r 6.14 is a deeming provision for procedural steps and did not defeat the temporal validity of service under CPR r 7.5(2) in these circumstances.

Appeal from the High Court (Queen's Bench Division, Media and Communications List) (Sir David Eady) [2017] EWHC 3368 (QB); appeal heard in the Court of Appeal and dismissed, [2019] EWCA Civ 648.