Murray v Times Newspapers Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barrington |
| Judgment Date | 29 July 1997 |
| Neutral Citation | 1998 WJSC-SC 10588 |
| Court | Supreme Court |
| Docket Number | [1991 No. 4554P; S.C. No. 47 of 1996] |
| Date | 29 July 1997 |
1998 WJSC-SC 10588
THE SUPREME COURT
Hamilton, C.J.
Barrington, J.
Murphy, J.
and
and
Citations:
JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988
BRUSSELS CONVENTION ART 5(3)
RSC r1a
BRUSSELS CONVENTION TITLE II
BRUSSELS CONVENTION TITLE II S1
BRUSSELS CONVENTION TITLE II S2
BRUSSELS CONVENTION ART 5.3
RSC O.11 rf
GATLEY ON LIBEL & SLANDER 7ED 45
SHEVILL V PRESSE ALLIANCE SA 1995 ECR 450
BRUSSELS CONVENTION ART 18
BRUSSELS CONVENTION ART 16
BRUSSELS CONVENTION ART 5 S3
CAMPBELL V VAN ART 1992 2 IR 305
RSC O.19 r28
FOSS V HARBOTTLE 1843 2 HARE 461
O'NEILL V RYAN & ORS 1993 ILRM 557
Synopsis:
Practice and Procedure
Application to strike out; contest to jurisdiction; delay in moving to strike out; libel action; proceedings instituted pursuant to Art. 5(3) Brussels Convention; place where harmful event occurred; libel published outside state; whether qualified appearance should be entered to contest jurisdiction; whether defendants mistakenly submitted to jurisdiction by entering an unqualified appearance; whether right to strike out claims outside ambit of Art. 5(3) forfeited due to delay; whether claim for damages should be struck out; whether shareholder can claim for damages suffered by company Held: Order granted to strike out claims based on libel published outside jurisdiction; damages claim not struck out Supreme Court: Hamilton C.J., Barrington J., Murphy J.29/07/1997
Murray v. Times Newspapers Ltd.
[1997] 3 IR 97
JUDGMENT of Mr. Justice Barrington delivered on the 29th day of July, 1997. [NEM DISS]
This is an interlocutory appeal in a libel action.
This appeal is against the Judgment and Order of Mr. Justice Barton, sitting as the Judge of the High Court, delivered and made herein on the 12th day of December 1995.
In the Action the Plaintiff claimed damages for libel as a result of two newspaper articles published by the Defendants and which appeared in editions of their newspaper on the 17th and 24th days of March, 1991, respectively.
The first named Plaintiff is the majority shareholder in the second named Plaintiff which in turn controls the third and fourth named Plaintiffs both of which are engaged to the Telecommunications industry. The fourth named Plaintiff is a company incorporated in the United Kingdom.
The Defendant is the publisher of "The Sunday Times" and has its registered office and principal place of business in the United Kingdom.
The Plaintiffs Plenary Summons, which issued on the 27th day of March 1991 and was addressed to the Defendants at their London office bore the following endorsement:-
1. "The Court has power under the Jurisdiction of the Courts and Enforcement of Judgments (European Communities) Act, 1988to hear and determine the Plaintiffs claim and the Court should assume jurisdiction to hear the said claim under the provisions of Article 5 (3) of the Brussels Convention on jurisdiction and enforcement of Judgments in civil and commercial matters, 1968.
2. No proceedings between the parties concerning this cause of action are pending between the parties in any other contracting state".
This endorsement was required by Rule la of the Rules of the Superior Courts which is as follows:-
la. "Where an endorsement of claim on an originating Summons concerns a claim which by virtue of the 1988 Act, the Court has power to hear and determine, the following provisions shall apply:
1. The originating Summons shall be endorsed before it has issued with a statement that the Court has power under the 1988 Act to hear and determine the claim and shall specify the particular provision or provisions of the 1968 Convention under which the Court should assume jurisdiction and
2. The originating Summons shall be endorsed before its issue with a statement that no proceedings between the parties concerning the same cause of action is pending between the parties in another contracting state........"
Title II of the Brussels Convention deals with "Jurisdiction". Section I of Title II lays down the general rule that persons domiciled in a Contracting State should be sued in that State whatever their nationality. Section 2 of Title II provides for certain exceptions to the general rule under the heading of "Special Jurisdiction".
Article 5.3 which appears in Section 2 provides as follows:-
"A person domiciled in a contracting state may, in another contracting state, be sued: ........."
3. In matters relating to Tort, delict or quasi delict in the courts of the place where the harmful event occurred; ........"
In context the words "harmful event" mean both the publication of the alleged libel and any damage (including special damage) alleged to flow from it.
The Plaintiffs Statement of Claim was delivered herein on the 28th day of March, 1991. This was before the Defendant's entry of an appearance which did not take place until the 15th day of April, 1991.
The Statement of Claim, having first described the Plaintiffs, went on to plead as follows:-
4. "The Defendant is the publisher of the weekly Newspaper called "The Sunday Times" which has a large circulation throughout Ireland, in the United Kingdom and elsewhere: The Defendant publishes a special Irish edition which circulates principally in Ireland. The main, or English edition of the said Newspaper also circulates in Ireland and will be referred to as "The English Edition".
5. On the 17th day of March, 1991 the Defendant falsely and maliciously published or caused to be written, printed and published, on the front page and on page 5 of the Irish edition of the said newspaper dated that day, of and concerning the Plaintiffs and of and concerning the Plaintiffs in the way of their aforesaid businesses, the words following, that is to say;.......".
The Statement of Claim then sets out the text of the first article complained of.
The Statement of Claim then continues (at paragraph 6) as follows:-
6. "On the 17th day of March, 1991, the Defendant falsely and maliciously published or caused to be written, printed and published, on the front page and on page 5 of the English edition of the said newspaper dated that day of and concerning the Plaintiffs and of and concerning the Plaintiffs in the way of their aforesaid businesses, the following words, that is to say-............."
The Statement of Claim then sets out the text of the second article complained of.
Paragraph 7 of the Statement of Claim sets out what the Plaintiffs alleged are the natural and ordinary meanings of the words contained in the said articles. Paragraph 8 set outs the text of a further newspaper report complained of by the Plaintiffs and published on the 24th day of March 1991 in the Irish edition of their newspaper. Paragraph 9 sets out what the Plaintiffs allege are the natural and ordinary meanings of the words contained in the said newspaper report.
The Statement of Claim then continues as follows at paragraph 10:-
10. "By reason of the premises the Plaintiffs have been injured in their credit and reputation and have been brought into public scandal odium and contempt".
11. Further, by reason of the premises, the Plaintiffs have suffered and sustained loss and damage which cannot be quantified until the full effects of the publication of the aforesaid articles can be assessed".
The Statement of Claim then went on to claim damages including aggravated and exemplary damages.
Had this claim been brought under the old procedure, it would have been necessary to apply for service out of the jurisdiction on the basis that the matters complained of were Torts committed within the jurisdiction by a person resident out of the jurisdiction. (See Rules of the Superior Courts Order 11 Rule paragraph (f). This leave would only have been granted in respect of a libel published within the jurisdiction. (See Gatly on Libel, Seventh Edition page 45).
The Statement of Claim appears on it's face to be consistent with a claim for damages in respect of the publication in Ireland in the Irish and in the English editions of the Sunday Times of material alleged be defamatory of the Plaintiffs.
But the important point is that the proceedings were brought under Article 5.3 of the Brussels Convention and Article 5.3 confers a special jurisdiction on "The Courts for the place where the harmful event occurred".
The correct interpretation of this phrase may have given rise to difficulty but this difficulty has now been removed by the decision of the European Court in Shevill v. Presse Alliance SA (1995 ECR page 450) where the Court said (at page 462 of its judgment):-
31 "In accordance with the requirement of the sound administration of justice the basis of the rule of special jurisdiction in Article 5(3), the courts of each Contracting State in which the defamatory publication was distributed and in which the victim claims to have suffered injury to his reputation are territorially the best placed to assess the libel committed in that State and to determine the extent of the corresponding damage.
32. Although there are admittedly disadvantages to having different courts ruling on various aspects of the same dispute, the plaintiff always has the option of bringing his entire claim before the courts either of the defendant's domicile or of the place where the publisher of the defamatory publication is established.
33. In light of the foregoing........ on a proper construction of...
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