George Bernard Turkington, Damien Anthony Breen, Ernest Reginald Telford,

Gerald Anthony McVeigh and Michael Paul Bennett practising as McCartan Turkington Breen (plaintiffs) v Derek Edward Anthony Winn Baron St Oswald and the British Broadcasting Corporation (defendants).

Defamation - Words published in England and republished in Northern Ireland - Where plaintiff may sue - Civil Jurisdiction and Judgments Act 1982 application to set aside service of writ Rules of the Supreme Court (NI) 1980, Order 12 rule 8.

Forum Non Conveniens - Factors to be considered when hearing application to stay action.

In the High Court of Justice in Northern Ireland (before Lord Justice Carswell); judgment delivered 2 May 1996.

A PLAINTIFF claiming damages for libel arising out of statements made by a defendant at a press conference, may bring proceedings against the defendant either in the jurisdiction where the words were originally published or in the jurisdiction in which the words were republished.

When considering an application to stay an action on the basis of forum non conveniens the court must decide where the case could be tried more suitably for the interests of the parties and for the ends of justice. Regard should be had to the forum with which the action has the most real and substantial connection, taking into account convenience, expense and the availability and residence of witnesses and parties. The burden is on the party seeking the stay to show that the court should exercise its discretion in its favour.

Lord Justice Carswell so held in allowing the plaintiffs' appeal against an order of the Master setting aside service of the plaintiffs' writ or alternatively staying the action on the basis of forum non conveniens.

Michael Lavery QC, Mervyn Morrow QC and Alva Brangham BL for the plaintiffs; Donnell Deeny QC for the first defendant.

LORD JUSTICE CARSWELL said that the plaintiffs were a firm of solicitors who had acted on behalf of Private Lee Clegg during his prosecution for murder and then upon his unsuccessful appeal against conviction to the Northern Ireland Court of Appeal. The first defendant was the chairman of a committee formed to press for the release of Private Clegg.

In January 1995, a press conference had been held at the Yorkshire home of Lord St Oswald. The plaintiffs claimed defamatory remarks had been made at this press conference regarding their conduct of Private Clegg's defence, and that these remarks had been broadcast by the BBC that evening throughout the United Kingdom and the Republic of Ireland.

The plaintiffs had served a writ on the defendants, and the solicitors for the first defendant had then brought an application seeking to have the writ set aside pursuant to the Rules of the Supreme Court (NI) 1980 Order 12 rule 8, or alternatively asking the Master to stay the action on the ground of forum non conveniens. The Master had allowed the application on both counts. The plaintiffs had appealed.

Lord Justice Carswell said that service out of the jurisdiction in another part of the United Kingdom was governed by Schedule 4 to the Civil Jurisdiction and Judgments Act 1982.

The first defendant had argued that Article 2 of Schedule 4 provided that a person should be sued in the part of the United Kingdom in which he was domiciled. The plaintiffs, however, had submitted that Article 5(3) provided that in actions in tort, a person could be sued in the part of the UK where the harmful event occurred, even though he was not domiciled there.

The first defendant had argued that this exception did not aid the plaintiffs as the "harmful event" had been the speaking of the words in Yorkshire. The plaintiffs had argued, however, that Lord St Oswald had committed two torts: slander when the words were spoken to reporters in England, and libel when the words were published in Northern Ireland and elsewhere. This latter head of liability was founded on the rule that the original publisher of a defamatory statement is liable for its republication by another person where such republication was the natural and probable result of the original publication. It was submitted that a press conference was designed to attract publicity and therefore the first defendant must be liable for the republication: see Gatley on Libel and Slander 8th edition, paragraphs 261 et seq and Speight v Gosnay (1891) 60 LJQB 231.

Lord Justice Carswell accepted that the plaintiffs had established a prima facie case against the first defendant, and this was sufficient to resist the first defendant's application.

However, the first defendant had submitted that the case had to be decided according to European Community law, and in particular the principle in Shevill v Presses Alliance SA (Case C-68/93) [1995] 2 AC 18. In that case it had been held that where a libel was published in several contracting states, the plaintiff could sue in the state where the publisher of the defamatory publication was established, and seek damages for all the harm caused by the defamation; or he could sue before the court of each state in which the publication was distributed and only receive damages in respect of the harm suffered in that state.

Lord Justice Carswell said that he did not have to decide if the Shevill principle applied in an action brought in one part of the United Kingdom in respect of a defamatory statement published in two or more parts of the United Kingdon. However, even if it did apply, that would not conclude the matter in favour of the first defendant. In Handelswekerij GJ Bier BV v Mines de Potasse d'Alsace SA (Case 21/76) [1978] QB 708 the European Court of Justice had held that, properly construed, Article 5(3) allows a plaintiff claiming damages for a tort to sue the defendant before the court where either the damage occurred or the event giving rise to it occurred. This case had been followed and applied in Shevill.

Accordingly, Lord Justice Carswell said that the plaintiffs could avail of the exception in Article 5(3), and they were en titled to sue the first defendant in respect of the publication of the words in Northern Ireland.

Turning to the first defendant's application to have the action stayed on the basis of forum non conveniens, Lord Justice Carswell said that the question was in which forum the case could be tried more suitably for the interests of the parties and for the ends of justice: see Spilidia Maritime Corporation v Cansulex Ltd, The Spilidia [1986] AC 460. The burden was on the party seeking the stay to show that the court should exercise its discretion in its favour. The court will look for that forum with which the action has the most real and substantial connection, taking into account, for example, convenience and expense, availability of witnesses and the places where the parties reside.

Affidavits sworn on behalf of the first defendant listed factors which, it was claimed, should lead to the action in Northern Ireland being stayed, including the facts that Lord St Oswald was elderly, unwell and domiciled in England, and that all of the first defendant's witnesses were domiciled in England. It was also averred that the first Defendant might not receive a fair trial in Northern Ireland, given the controversy surrounding the Clegg case.

Lord Justice Carswell said that the strongest argument for refusing to stay the action against the first defendant was that, if he did so, the action against the second defendant would continue in Northern Ireland. This would increase costs and inconvenience, as well as raising the possibility of inconsistent verdicts and further complicating the issue of damages.

Lord Justice Carswell concluded that as the plaintiffs' practice was in Northern Ireland, where they all resided, the damage which they might have suffered would have been greatest in that jurisdiction. Accordingly, it was no less than just that the plaintiffs should be able to commence their major proceedings in the jurisdiction where, if they were to succeed in their claim, the tribunal of fact would be able to appreciate most accurately the effect of the publication upon them.

Therefore, the first defendant had not shown a sufficient case in favour of staying the action as against him, and the appeal would be allowed, the Master's order reversed, and the summons dismissed.

Solicitors: Elliott Duffy Garret (Belfast) for the Plaintiffs; L'Estrange and Brett (Belfast) for the first Defendant.