High Court of Ireland Decisions

1. Sir Louis Blom-Cooper QC (Sir Louis), the Second named Defendant in these proceedings, is the author of a booklet intituled “The Birmingham Six and other Cases - Victims of Circumstance”. The First named Defendant (Duckworths) is the publisher of the booklet.

2. Each of the Plaintiffs, in common with four other men, have become known collectively as “The Birmingham Six” and allege in their statements of claim that they were:

3. Each of the Plaintiffs allege that they have been defamed by material contained in Sir Louis’ booklet and commenced the instant proceedings before this Court by Plenary Summonses dated the 31st day of July 1998. In the summonses the address of Sir Louis is given as Doughty Street Chambers, 11 Doughty Street, London whilst that of Duckworths is 48 Hoxton Square, London.

4. These summonses claim:

5. Each summons contained the following endorsement:

6. Duckworths entered unconditional appearances to these summonses. In each case Sir Louis entered a conditional appearance solely for the purpose of contesting jurisdiction. He then brought the present motions which seek inter alia in each case the following reliefs:

7. In the hearing before me Sir Louis did not pursue the reliefs sought at ground No. 4 so I do not have to consider any question of forum non conveniens .

8. Another question also disappeared out of the case during the hearing before me as a result of a concession made by the Plaintiffs. This concerned the claim for damages for alleged breach of the Plaintiffs’ constitutional right to their good name as protected by Article 40.3.2 of the Constitution. It was accepted that insofar as these actions are concerned that claim did not have a separate and independent existence and was subsumed by the claim for damages for libel. The claim for damages for libel is brought pursuant to the provisions of the Defamation Act, 1961 which the Plaintiffs accept is the enactment giving expression to, and method of enforcement of, their constitutional right to their good name. It follows therefore that the Plaintiffs’ claims fall to be considered as straightforward claims for damages for libel. Counsel for the Plaintiffs has also accepted that these proceedings seek to recover damages only in respect of any loss of reputation suffered by the Plaintiffs within the jurisdiction of this court.

9. Four affidavits were sworn in respect of this application. Two were sworn by Sir Louis and one each by Mr. Callaghan and by Mr. Hunter. The decision in Mr. Hunter’s case will govern Mr. Callaghan’s case.

10. In his first affidavit Sir Louis averred that he wrote the book in question between May and September 1997 and delivered the finished manuscript to Duckworths at it’s London office on the 20th of September 1997. Duckworths published the book in England on the 29th of November 1997.

11. Sir Louis received a letter dated the 26th of February 1998 from the Irish Solicitors for the Plaintiffs complaining of alleged libel and threatening the commencement of proceedings against him. His English Solicitors replied to that by letter dated the 1st of April 1998. In addition to taking issue with the Plaintiffs’ contentions this letter also questioned the entitlement to bring these proceedings.

12. Sir Louis says that he considers the bringing of these proceedings an unusual course by reason:

13. The replying affidavit sworn by Mr. Hunter inter alia avers that as an Irish

14. Mr. Callaghan’s affidavit is largely the same as Mr. Hunter’s. The only differences concern the family connections with Ireland and the fact that he has been making enquiries about the purchase of a home in this State. Nothing turns on these differences.

15. The final affidavit was sworn by Sir Louis in reply. He reiterates that he handed the manuscript to Duckworths at their offices in London. A short time before publication at the end of November 1997, he had discussions with Duckworths about the desirability of not directly disseminating the book in Ireland. That arose from the fact that since December of 1992, Sir Louis has held the post of Independent Commissioner for the Holding Centre in Northern Ireland. That was an appointment made by Her Majesty’s Secretary of State for Northern Ireland under prerogative powers and had to be formally approved by the government of this state through the agency of the Anglo-Irish Secretariat in Belfast. Sir Louis had discussions with officials in the Northern Ireland Office about any political impact that might ensue from publication of the book in both Northern Ireland and the Republic of Ireland. Those discussions were held before he met with his publishers on the topic. He says that “[w]hile some worry was held by officialdom of some adverse comment by republican commentators”, he was assured that the Secretary of State for Northern Ireland would affirm his appointment, acknowledging that he was independent of government and was free to express his views publicly about miscarriages of justice in the English Courts. Armed with that unofficial expression of view he says that he requested the publishers to avoid distribution of the book in Ireland. Their response was to indicate that they had no means of preventing all copies of the book reaching Ireland and he acknowledged that difficulty. That, he says, is very different from encouraging direct sales and the publishers were, he believes, well aware that he did not wish that to happen. He therefore invites me to draw the inference that the distribution of the book in this jurisdiction was not desired by him. Furthermore, he points out that under his contract with the publishers he receives no royalty on sales anywhere in the world and was entitled to receive a mere £25.00 as a contribution for secretarial expenses which he had incurred. He then draws my attention to the fact that the issue as to whether or not it was agreed between Duckworths and himself, that no distribution would take place in Ireland, is now the subject of litigation before the High Court in England.

16. In those proceedings Sir Louis is being sued by Duckworths who seek inter alia a declaration that he is obliged to indemnify them in respect of the instant proceedings. That declaration is sought on foot of an agreement of 28th July, 1997 between Sir Louis and Duckworths whereby the publishers were granted the sole and exclusive right to publish the booklet.

17. In his defence in those proceedings Sir Louis admits that the booklet was published in this State but denies that such publication was in accordance with the publication agreement. He says “[t]he express wish of the Defendant [Sir Louis] as communicated to the Plaintiff was that the Work was not to be distributed in Ireland”. Particulars of the expression of this wish are then given. They are that Sir Louis spoke with the agent and representative of Duckworths as to restricting the sale of the booklet in Ireland. Thereafter, but prior to publication of the booklet, Sir Louis spoke with the assistant of the agent and expressed the wish that the booklet should not be published in Ireland.

18. In the English proceedings Duckworths deny Sir Louis’ assertions in the defence which I have just alluded to. They make the point that the written agreement confers the right to publish throughout the world. Even if there was the discussion alleged, it would not, it is said, affect the publishers’ rights in the written agreement.

19. Whilst the conversation with the agent is admitted, its alleged contents are not. Instead it is said that Sir Louis, whilst expressing a preference for the book not to be “pushed” in Northern Ireland because he might be accused of being anti-Republican, no reference was made to this State.

20. These are matters which must be ruled upon by the English High Court but I have set them out so as to complete the description of the evidence placed before me on this application.

21. The Brussels Convention is part of Irish domestic law. It has become so on foot of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988.

22. The general rule of the Convention is stated in Article 2 thereof which provides that subject to the provisions of the Convention, persons domiciled in a contracting State shall, whatever their nationality, be sued in the Courts of that State. There are, however, exceptions to that rule and in this case one of those exceptions is relied upon by the Plaintiffs. The exception is that contained in Article 5(3). That provides 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.

23. As Article 5(3) is in the nature of an exception to the general rule set forth at Article 2 of the Convention, the Plaintiffs accept that the onus is upon them to establish that the circumstances of the case bring them within the exception relied upon (see Ewins v. Carlton [1997] 2 ILRM 223 at 227).

24. Barr J. refused the relief sought by the defendants but limited the plaintiff's claim to damages for harm done to them in this State. In the present case the Plaintiffs have already accepted that they can only bring these proceedings in respect of harm done to their reputation in this State.

25. In the course of his judgment, Barr J. referred to the decision of the European Court of Justice in Shevill v. Presse Alliance S.A. [1995] 2 AC 18. The facts in that case are well known. The plaintiff, a United Kingdom national resident in Yorkshire, complained that she had been libelled in an article in the newspaper “France Soir” which was published by the defendant company. That paper was mainly distributed in France where sales amounted to more than 237,000 copies daily. 230 were sold in England. The defendant argued that under Article 2 of the Convention the French Courts had jurisdiction in the dispute and the English Courts could not assume jurisdiction under Article 5(3) of the Convention. The Law Lords referred the case to the European Court of Justice for a preliminary ruling. It was held by that Court at page 64 that:

26. Sir Louis contends that the determination of jurisdiction, including the identification of the place where the harmful event occurred, is a matter of Convention law. He says that it is implicit in the opening sentence of Article 5 and in 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. That, he says, is a matter of Convention law. The analysis of the case, once jurisdiction is established, then becomes an issue of national law and the criteria for assessing whether the event is harmful is also a matter of national law. He cites Shevill’s case in support of these arguments.

27. Put in a nutshell, it is said that Sir Louis published the matter complained of when he handed the manuscript to Duckworths in London. That was the only publication by him and it did not occur within the jurisdiction of this Court. Duckworths then decided to publish in this jurisdiction but did so in circumstances where such publication was not the natural and probable result of the original publication of the material to them by Sir Louis. It is contended that Sir Louis could only have a liability in this jurisdiction in circumstances where the publication was either approved of by him or was the natural and probable result of the original publication which he made to Duckworths by handing them the manuscript in London. It is therefore said that he neither intended to nor was it the natural and probable result of this publication that the booklet should be published in Ireland. He says that this case is quite different on its facts from Ewins case where the natural and probable consequence of providing the television programme to Ulster Television for broadcast on its network was that it would reach a significant number of viewers in this State.

28. Whilst it is accepted that this is the position at common law, it is said that I must look at the issue before me not by reference to this common law concept but rather by reference to the Convention. Looked at in this light, it is submitted that Sir Louis has no sufficient nexus with the publication in this State to entitle the Plaintiffs to sue him here.

29. I cannot believe that the Convention seeks to depart from the notion that the original publisher of defamatory matter will be liable for republications which are the natural and probable consequences of such publication. No authorities have been cited to support such a view. Indeed, the very way in which the issue has been formulated as a matter of Convention law by Counsel for Sir Louis bears a remarkable resemblance to the common law position. The question which I must address is, therefore, whether the publication in Ireland of the booklet is a natural and probable consequence of Sir Louis’ first publication in all the circumstances. If it is then this application fails.

30. There can be no doubt but that the only act of direct publication which was effected by Sir Louis was the handing of the manuscript of the booklet to his publishers in London. However, it is quite clear that the purpose of that publication was to bring about the production of the booklet in question. That was the subject of a written contract entered into between Sir Louis and Duckworths. There is no evidence that that contract contained an express term prohibiting the publication or distribution of the work in question in this jurisdiction. On the contrary, the terms of the written contract expressly authorised Duckworths to publish the work throughout the world and indeed to licence any other publisher so to do. In the written contract, therefore, Sir Louis gave the widest possible publication rights to Duckworths. Had he wished to exclude publication in this jurisdiction, he could have insisted on an express term to that effect being inserted into the written contract but did not do so.

31. He does say, however, that notwithstanding that omission from the written contract, nonetheless publication here cannot be considered to be the natural and probable result because of what passed between him and Duckworths agents. The high water mark of the evidence adduced by Sir Louis as to the efforts made by him to ensure that publication did not occur within this jurisdiction is that he (a) had discussions with the publishers about the desirability of not directly disseminating the book in Ireland (paragraph 4 of his affidavit sworn on the 28th June, 1999) and (b) that he requested the publishers to avoid distribution of the book in Ireland. He says that the publishers’ response was to indicate that they had no means of preventing all copies of the book reaching Ireland and “ I acknowledge that difficulty”. He goes on to say that that is very different from encouraging direct sales and the publishers were, he believes, well aware that he did not wish that to happen.

32. Merely to have discussions about the desirability of not directly disseminating the book in Ireland and making a request to avoid distribution of the book in Ireland does not appear to me to be going anything like far enough to be able to successfully maintain that the publication of the book in this jurisdiction was not the natural and probable consequence of giving publication rights of the type in question to Duckworths. I am fortified in that view when Sir Louis acknowledges the difficulty of preventing all copies of the book reaching Ireland. It appears to me that given the issues discussed in the book, the proximity of England to Ireland and the interest that was likely to be shown in the topic in this country, it was almost inevitable that publication would occur within this jurisdiction. Such publication must have been the natural and probable consequence of allowing the book be published in the first instance on the terms set forth in the written memorandum. It may very well be that Sir Louis did not think it desirable that such should occur and sought to avoid distribution by means of a request to the publisher but that falls very short of taking effective steps to ensure that there would be no publication.

33. At paragraph 7 of his affidavit sworn on the 28th June, 1999 Sir Louis says that what he did “is very different from encouraging direct sales and the publishers were, I believe, well aware that I did not wish that to happen”. Sir Louis’ wishes and the fact that he did not encourage direct sales is not, however, the issue that falls to be determined upon this application. The only issue is whether or not the publication of the book in this jurisdiction was, in all the circumstances, the natural and probable result of his furnishing the manuscript to Duckworths in the circumstances revealed in the evidence. In such circumstances publication of the work in this jurisdiction was a natural and probable consequence of placing the book for publication with Duckworths and therefore, as a matter of law, Sir Louis does have responsibility for the alleged harmful event occurring in Ireland.

34. It follows, therefore, that these proceedings are properly brought under

35. Article 5(3) of the Brussels Convention as against Sir Louis and his application must therefore be dismissed.