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URL: http://www.bailii.org/scot/cases/ScotSC/2004/84.html
Cite as: [2004] ScotSC 84

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JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the cause

EDWARD EDELSTEN CAIRNS v ANDREW DOWNIE C/O SCOTTISH ENTERPRISE - A3864/03

For the pursuer/appellant: Party

For the defender/respondent:

McEntegert, Solicitor, Anderson Fyfe

GLASGOW, 22 December 2004.

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 22 July 2004; finds the pursuer and appellant liable to the defender and respondent in the expenses of the action and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon.

NOTE

[1] This appeal raises a short but interesting point on a question of jurisdiction in an action of defamation.

[2] The pursuer seeks damages at a figure in excess of £400,000. He alleges - in the words of his own averments - that the defender communicated defamatory statements about him to third parties. These third parties appear to be the Chartered Institute of Management Accountants and the Institute of Chartered Accountants of Scotland. Neither body is said to have any direct connection with Glasgow. The defender was, at the material time, Director Corporate Services of Enterprise Ayrshire, an organisation which employed the pursuer. It is not suggested that Scottish Enterprise Ayrshire had any place of business or indeed any direct connection with Glasgow at the material time.

[3] The defender is designed as care of Scottish Enterprise, 150 Broomielaw, Glasgow. The pursuer avers that "the defender's address is unknown to the pursuer but he is an employee of Scottish Enterprise which has its headquarters at 150 Broomielaw, Glasgow". That assertion is not founded on as a basis of jurisdiction because the pursuer proceeds to state "this court has jurisdiction since the damage to the pursuer took place including in (sic) the Glasgow area". The pursuer himself resides in Springburn which is within the area of jurisdiction of Glasgow Sheriff Court.

[4] Following debate the sheriff sustained a plea of no jurisdiction and dismissed the action on that ground. In so doing he upheld an argument that in the absence of averments that the statements complained of by the pursuer had been communicated to a party within the jurisdiction of the court or that he had suffered loss and damage within that territory there was no basis for the court holding itself seized of jurisdiction. The pursuer has now appealed, and presented an extensive written submission much of which is beside the point. His basic argument, however, is that as he resides in Glasgow that is where his reputation was damaged and in consequence it falls to be regarded as a place where the "harmful event" occurred for the purposes of paragraph 2(C) of Schedule 8 of the Civil Jurisdiction and Judgments Act 1982.

[5] Leaving aside any difficulty which the pursuer may have in relation to a paucity of averment as to the form and place of injury to his reputation it is my view that his basic contention is unsound and that the sheriff was correct to sustain the plea of no jurisdiction. The most pertinent authority is the case of Schevill v Presse Alliance. In his written submissions the pursuer quoted a passage at page 182 in Norrie, Defamation and Related Actions in Scots Law, which contains a summary of the proceedings in that case before the Court of Appeal in England (reported at 1992 1 AER 409). The case concerned an alleged libel in a newspaper which had a small circulation in England but which was published in France where its main circulation was centred. It was argued that the English court had no jurisdiction since the substantial loss had occurred in France and that any "harm" which occurred in England was only presumed harm which was insufficient to constitute the harmful event within the meaning of Article 5(3) of the 1968 Brussels Convention. That argument was rejected by the Court of Appeal, the passage in Norrie indicating the view that "on a question of jurisdiction, a presumed harmful event was sufficient, with the result that the plaintiff had the option of suing in the courts of the defendant's domicile or in the courts of the place where the wrongful act was committed or in the courts of the place where the damage occurred or was presumed to occur". The author states: "There is no doubt that this represents Scots Law also". The pursuer's contention in the present case, in substance, is that it is reasonable to presume that there was harm to his reputation, and that as this occurred in the Glasgow area the court has jurisdiction.

[6] Professor Norrie's book states the law as in January 1995 and for that reason the passage founded on does not refer to the fact that the case of Schevill subsequently proceeded to the House of Lords and was referred to the Court of Justice of the European Communities for a preliminary ruling on a number of questions essentially seeking guidance on the interpretation of the concept of "the place where the harmful event occurred" in Article 5(3) of the 1968 Convention. The decision of the European Court is at 1995 2 AC 18. It falls to be stressed that the case concerned libel by a newspaper distributed in several contracting states and much of what was said in it is particular to cases of that type. It may nevertheless be said to give some guidance as to the concept of "the occurrence of a harmful event" in cases involving damage to reputation. In paragraph 28 of the Opinion of the Court it is stated that:

"The place where the damage occurred is the place where the event giving rise to the damage, entailing tortious, delictual or quasi-delictual liability, produced its harmful effects on the victim".

[7] Whilst at first sight that may appear to favour the present pursuer's argument the judgment proceeds in the following terms at paragraph 29:

"In the case of an international libel through the press, the injury caused by a defamatory publication to the honour, reputation and good name of a natural or legal person occurs in the places where the publication is distributed, when the victim is known in those places".

It was effectively on that consideration - that is to say that the "harmful effect" occurred in a place where the publication was distributed - that the European Court upheld the view of the English courts that they had jurisdiction.

[8] In Schevill the European Court made it clear that the ground of jurisdiction set out in Article 5(3) of the 1968 Convention (from which ground 2(C) of Schedule 8 of the 1982 Act is derived) exists by way of derogation from the general principle in the first paragraph of Article 2 of the Convention that it is the court of the defendant's domicile which has jurisdiction (see paragraph 18 of the European Court Judgment). Emphasis was also placed on the fact that "as regards procedural rules, reference must be made to the National Rules applicable by the National Court provided that the application of those rules does not impair the effectiveness of the Convention": see paragraph 36.

[9] Applying all these considerations to the present case it does not seem to me that there is any basis for holding that the "harmful event" complained of by the pursuer occurred in Glasgow. The "harmful event" in Schevill was capable of being said to have occurred in England because there was an element of distribution of the publication within that jurisdiction. There is nothing of that nature alleged in the present case. I have not overlooked the fact that there are allegations that the defamation was repeated in the press in some form, but I do not consider that to be the responsibility of the defender. Fundamentally I do not consider that one can create, as the pursuer in the present case seeks to, some form of personal jurisdiction on the basis of a damaged reputation. That would conceivably entitle a pursuer in a defamation action to raise the proceedings in a court in any area where he considered that he had a "reputation". It would introduce the element of uncertainty in jurisdiction which the 1968 Convention and the Rules deriving from it were designed to avoid. In these circumstances I am satisfied that no ground of jurisdiction is relevantly pled and that the appeal falls to be refused.