Gerry Hunter (plaintiff) v Gerald Duckworth & Company Limited and Louis Blom-Cooper (defendants).
Hugh Callaghan (plaintiff) v Gerald Duckworth & Company Limited and Louis Blom-Cooper (defendants).
Practice and Procedure - Entry of conditional appearance to con- test jurisdiction - Whether or not republication of defamatory statement in Ireland was a natural and probable consequence of original publication in another contracting state - Claim for damages for harm done in the State - Jurisdiction of Courts and Enforcement of Judgments (EC) Act 1988 - Brussels Convention 1968, Articles 2 and 5.
The High Court (Mr Justice Kelly); judgment delivered 10 December 1999.
THE Brussels Convention did not intend to depart from the common law rule that the original publisher of a defamatory statement is liable for its republication by another person where the republication of the words to a third party is the natural and probable result of the original publication. Hence, where an original publication, made in a contracting state, is subsequently republished in Ireland, the appropriate question to be considered was whether or not the republication was such a natural and probable consequence of the original publication. If it was, the Irish courts had jurisdiction to determine the alleged victim's claim for damages for harm done in this State.
Mr Justice Kelly so held in dismissing the second defendant's application for a declaration that the court had no jurisdiction over the subject matter of the proceedings.
Paul Callan SC and Seamus O Tuathail BL for the plain- tiffs; Michael Ashe BL and Klaus Reichert BL for the second defendant.
MR JUSTICE KELLY said that the plaintiffs were two of the "the Birmingham Six" and alleged in their statements of claim that they were the victims of a notorious miscarriage of justice in England arising out of the aftermath of the Birmingham pub bombings in 1974. The second defendant was the author of a booklet entitled "The Birmingham Six and other Cases - Victims of Circumstance" and the first defendant (Duckworths) was the publisher of the booklet. The plaintiffs alleged that they were defamed by material contained in the booklet and commenced proceedings by plenary summonses in July 1998, claiming damages for libel and breach of their constitutional right to their good name, and injunctions restraining the defendants from publishing the allegedly defamatory material. The summonses stated London addresses for both defendants. Each summons contained an endorsement asserting the court's power to hear and determine the claims under the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988 ("the 1988 Act"), the court's jurisdiction under Article 5(3) of the Brussels Convention 1968 ("the Convention"), and confirmed that no proceedings were pending between the parties in any other contracting state in relation to the same cause of action.
Mr Justice Kelly noted that Duckworths entered an unconditional appearance to the summonses and that the second defendant entered conditional appearances to contest the court's jurisdiction. The application before Mr Justice Kelly was the second defendant's motion seeking a declaration that the court had no jurisdiction over the subject matter of the proceedings and orders setting aside service of the plenary proceedings and statements of claim. He also sought orders striking out and/or staying the proceedings or, alternatively, orders staying the proceedings on the grounds of forum non conveniens.
Mr Justice Kelly further noted that plaintiffs' claim for damages for alleged breach of their constitutional right to their good name was disposed of by their concession that same was subsumed by their claim for damages for libel. The libel claim was brought pursuant to the Defamation Act 1961, and the plaintiffs accepted that this Act provided a mode of enforcement of this constitutional right. The plaintiffs also accepted that the proceedings sought to recover damages only in respect of any loss of reputation suffered by them within the jurisdiction of the court. Furthermore, the second defendant did not pursue the issue of forum non conveniens.
Mr Justice Kelly reviewed the four affidavits sworn in respect of this application, two sworn by the second defendant and one by each of the plaintiffs. Mr Justice Kelly said that nothing turned on the differences between the plaintiffs' affidavits and the decision in respect of Mr Hunter's case would govern Mr Callaghan's case.
In his first affidavit, the second defendant averred, inter alia, that he delivered his manuscript to Duckworths in London in September 1997 and it published the booklet in England in November 1997. He further averred that he received a letter from the plaintiffs' Irish solicitors in February 1998 alleging libel and threatening to commence proceedings against him and that, in April 1998, his English solicitors replied by letter and took issue with the plaintiffs' contentions and questioned their entitlement to bring the proceedings. Mr Justice Kelly noted that the second defendant considered it unusual for the plaintiffs to issue proceedings for a number of reasons, namely - (a) having regard to the provisions of Article 2 of the Convention; (b) the fact that England was the locus of all events connected with the alleged defamation, including publication; the location of all of the relevant voluminous documentation; the second named defendant's place of domicile and residence; the home of every potential trial witness; the plaintiff's place of residence and probably domicile; and the place where all events associated with the Birmingham Six took place; (c) that questions of immense constitutional importance in the booklet were solely related to England and were exclusively matters of English law and primarily of English public interest; and (d) that there could be no jurisdictional impediment of any kind to the plaintiff bringing these proceedings in England where he was resident.
Mr Hunter's replying affidavit asserted, inter alia, that he was entitled as an Irish citizen to pursue his claim in Ireland and he brought the proceedings here because of his concern about the damaging effect of the booklet to his reputation in Ireland and among Irish people abroad. He took issue with the the second defendant's assertion that England was the site of all events connected with the defamation and referred to the circulation of the booklet in Ireland, both North and South. Mr Hunter further asserted, inter alia, that many of his potential trial witnesses were Irish residents and, although resident in London, he intended to return to Ireland in the future. He also gave details of his ongoing connection with both Northern Ireland and this State. Mr Justice Kelly noted that Mr Hunter accepted that, given that the booklet was published and distributed in England, there was no jurisdictional impediment to bringing the proceedings in England.
Mr Justice Kelly examined the second defendant's replying affidavit which, inter alia, reiterated that the manuscript was delivered to Duckworths in London and outlined his discussions with Duckworths shortly prior to publication about the desirability of not directly disseminating the booklet in Ireland. It also stated that these discussions were held having regard to fact that he had, since 1992, held the post of Independent Commissioner for the Holding Centre in Northern Ireland and that, while this independent post left him free to publicly express his views about miscarriages of justice in the English courts, nevertheless he was aware of " . . . some worry held by officialdom of some adverse comment by republican commentators". This affidavit also averred that Duckworths indicated that they could not prevent all copies of the booklet reaching Ireland and the second defendant acknowledged this difficulty. He further averred that this was very different from encouraging direct sales and that he believed that Duckworths were well aware that he did not wish that to happen. Mr Justice Kelly said that the second defendant was inviting him to infer that he did not desire the booklet's distribution in this jurisdiction. Mr Justice Kelly also noted, inter alia, the second named defendant's point that his contract with Duckworths did not provide for the payment of royalties on sales and that proceedings were pending before the English High Court regarding the issue of whether or not it was agreed that the booklet would not to be distributed in Ireland. Mr Justice Kelly outlined the nature of the English proceedings in order to complete the description of the evidence placed before him in the present application. Mr Justice Kelly noted that, in the English proceedings, Duckworths were seeking, inter alia, a declaration that, pursuant to the exclusive publishing agreement in 1997, the second defendant was obliged to indemnify them in respect of the Irish proceedings.
Mr Justice Kelly said that the second defendant admitted that the booklet was published in this jurisdiction but denied that this was in accordance with the agreement: it was contrary to his wishes as expressly communicated to the agent and representative of Duckworths prior to publication. Furthermore, Duckworths asserted that the written agreement conferred the right to publish world-wide and that, even if the alleged discussion took place, it would not affect their publication rights under the written agreement.
Mr Justice Kelly further noted that Duckworths admitted the alleged conversation, but not its contents, and claimed that, while the second defendant expressed a preference that the booklet not be published in Northern Ireland, no reference was made to its publication in this State.
Mr Justice Kelly said that the 1988 Act implemented the Convention in Ireland. Article 2 of the Convention provides, subject to exceptions, that persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that State. He noted the plaintiff's reliance on the exception in Article 5(3) of the Convention providing that a person domiciled in a contracting state may, in another contracting state, be sued in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred.
Mr Justice Kelly said that the plaintiffs accepted that the onus was on them to establish the circumstances bringing them within the exception. In this regard, Mr Justice Kelly cited Ewins v Carlton [1997] 2 ILRM 223 at page 227. This case concerned a claim for damages arising out of a television documentary made and published by Carlton and disseminated to the public by ITN, including Carlton and Ulster Television. Carlton and Ulster Television were limited companies established under the laws of the United Kingdom. Both companies claimed that Article 5(3) of the Convention did not permit the plaintiffs claim for damages on a world-wide basis and asserted that, pursuant to Article 2, the United Kingdom was the appropriate forum within which to bring such a claim. The plaintiffs, however, asserted that the "harmful event", for the purpose of Article 5(3), occurred in Ireland in that as many as 111,000 viewed the programme transmitted here by the defendants, and therefore claimed that they were entitled to sue here. Mr Justice Barr refused the relief sought by the defendants but limited the plaintiffs' claim to damages for harm done in this State. In the present case, before Mr Justice Kelly, the plaintiffs accepted this limitation to their claim.
Mr Justice Kelly noted that in Ewins, Mr Justice Barr approved the decision of the European Court of Justice in Shevill v Presse Alliance SA [1995] 2 AC 18. Here, the plaintiff, a national and resident of the United Kingdom, claimed that she was libelled in "France Soir", a newspaper published by the defendant. Daily sales of the newspaper exceeded 237,000 in France and were 230 in England. The defendant claimed that the French courts had jurisdiction under Article 2 of the Convention and that the English courts could not assume jurisdiction under Article 5(3). In a reference from the House of Lords, the European Court of Justice held, at page 64, that the "place where the harmful event occurred", in Article 5(3), is to be construed such that the victim of libel in a newspaper article distributed in several contracting states may bring an action for damages against the publisher thereof in the courts of the contracting state of the place where the publisher is established and which courts have jurisdiction to award damages for all the harm caused by the defamation. Alternatively, an action may be brought before the courts of each contracting state in which the publication was distributed, in which case the courts of each State have jurisdiction to rule solely in respect of the harm caused in the State of the court seised. The European Court of Justice also held that the criteria for assessing whether a particular event is harmful, and the evidence required of the existence and extent of the harm alleged by the victim of the defamation, are not governed by the Convention but by the substantive law determined by the national conflict of laws rules of the courts seised, provided that the effectiveness of the Convention is not thereby impaired.
Mr Justice Kelly said that the second defendant contended that the determination of jurisdiction, including the identification of where the harmful event occurred, is a matter of Convention law and that it was implicit in Article 5 and Article 5(3) that for a person to be sued in a particular jurisdiction, he must have responsibility for the alleged harmful event occurring in that jurisdiction, which was also a matter of Convention law. The second defendant claimed that, once jurisdiction was established, the analysis of the case became an issue of national law, as were the criteria for assessing whether the event was harmful. He cited Shevill in support of these arguments.
Mr Justice Kelly noted that the second defendant asserted that the only publication by him occurred when he delivered the material to Duckworths and that he could only have a liability in Ireland if he approved of its publication here or that same was the natural and probable result of his original publication to Duckworths. The second defendant denied that he intended that the booklet would be published in Ireland or that this was the natural and probable result of the original publication and he sought to distinguish the present case from Ewins on this basis. Mr Justice Kelly considered Speight v Gosnay (1891) 60 LJ QB 231 wherein the Court of Appeal held that the original publisher of a defamatory statement is liable for its republication by another person where, inter alia, the repetition or republication of the words to a third party is the natural and probable result of the original publication. He noted the acceptance of this rule in Northern Ireland and in this jurisdiction, citing Turkington v Baron St Osward (High Court, Northern Ireland, 2 May 1996, unreported) and Ewins v Carlton [1997] 2 ILRM 223 at 231.
However, while the second defendant accepted that this represented the common law position, he submitted that the present issue should be considered by reference to the Convention and that, in this regard, he did not have a sufficient nexus with the publication in Ireland that would entitle the plaintiffs to sue him here.
Mr Justice Kelly rejected the submission that the Convention sought to depart from the common law rule. Mr Justice Kelly said that the appropriate question to be considered was whether or not the publication of the booklet in Ireland was a natural and probable consequence of the second defendant's original publication, which was his only act of direct publication, and if it was, the second defendant's application would fail.
Mr Justice Kelly said that the purpose of that publication was clearly to bring about the production of the relevant booklet and that this was the subject of a written contract between the second defendant and Duckworths. Mr Justice Kelly further noted that the contract expressly authorised Duckworths to publish the work world-wide, and to license any other publisher so to do, and that if the author had wished to exclude publication in Ireland, he could have insisted on the insertion of an express term to that effect. Mr Justice Kelly noted the second defendant's claim that publication in Ireland could not be considered to be the natural and probable result because of what passed between him and the agents of Duckworths.
Mr Justice Kelly referred to the relevant paragraphs of the second defendant's affidavit regarding his discussions with Duckworths about the desirability of not directly disseminating the booklet in Ireland and his request that such distribution be avoided. Mr Justice Kelly said that this did not go anything like far enough to be able to successfully maintain that the publication of the booklet in Ireland was not the natural and probable consequence of giving the said publication rights to Duckworths. Mr Justice Kelly said that the second defendant's acknowledgment of the difficulty in preventing all copies of the booklet reaching Ireland fortified this view.
Mr Justice Kelly said that, given the issues discussed in the book, the proximity of England to Ireland and the interest that was likely to shown in the topic in Ireland, it was almost inevitable that publication would occur here and that this must have been the natural and probable consequence of allowing the booklet to be published in the first instance on the agreed written terms.
Mr Justice Kelly continued that the second defendant's desire to avoid publication, and his request to this effect, fell very short of taking effective steps to ensure that there would be no publication. On this basis, Mr Justice Kelly said that his affidavit was irrelevant to the only issue which was whether or not the publication of the booklet in Ireland was, in all the circumstances, the natural and probable result of his furnishing the manuscript to Duckworths on the stated terms. Mr Justice Kelly held that publication in Ireland was such a natural and probable consequence and held that the second defendant had responsibility for the alleged harmful event occurring in Ireland.
Therefore, Mr Justice Kelly was satisfied that the proceedings were properly brought against the second defendant under Article 5(3) of the Convention and he dismissed his application.
Solicitors: Lehane & Hogan (Dublin), for the plaintiff; Eugene F. Collins (Dublin) for the second defendant.
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