Lennon v Scottish Daily Record & Sunday Mail Ltd

Factual and Procedural Background

The Defendant in a libel claim applied to dismiss or stay the action on grounds that Scotland was the more appropriate forum or, alternatively, that the words complained of were incapable of bearing the meanings pleaded by the Plaintiff. The Plaintiff is a well-known footballer playing for Company A, and the Defendant publishes Company B. The claim concerns articles published in Company B on 20th December 2002. The articles alleged that members of the Plaintiff's football team emerged from a nightclub in The City and robbed a photographer of £12,000 worth of camera equipment. The Plaintiff contended that readers would understand him to have been one of the guilty players or, at least, probably one of them.

The Defendant sought a stay on the basis of forum non conveniens, arguing that Scotland was the more appropriate forum. The court considered the jurisdictional framework under the Civil Jurisdiction and Judgments Act 1982 and the Judgments Regulation, as well as relevant case law on forum non conveniens and defamation.

Legal Issues Presented

1. Whether the court should dismiss or stay the libel action on the grounds that Scotland is the more appropriate forum under the doctrine of forum non conveniens.
2. Whether the words complained of are capable of bearing the defamatory meanings pleaded by the Plaintiff.
3. Whether the jurisdictional rules under the Civil Jurisdiction and Judgments Act 1982 and the Judgments Regulation preclude the English court from granting a stay in favor of Scottish courts.

Arguments of the Parties

Defendant's Arguments

• The Defendant contended that Scotland was the appropriate forum for the trial under the principle of forum non conveniens.
• They argued that damages for defamation are generally higher in England than in Scotland, where damages are typically modest and awarded only as solatium for affront, thus English courts should be vigilant not to be used to circumvent Scots law.
• The Defendant pointed to the greater circulation of their newspaper in Scotland compared to England on the publication date, suggesting a stronger connection to Scotland.
• They challenged the Plaintiff’s motivation, noting the timing of the claim within the English limitation period and the Plaintiff’s failure to sue on other related publications.
• They submitted that the words complained of were incapable of bearing the meanings pleaded by the Plaintiff, emphasizing that the articles identified only three players as suspects of robbery and that the Plaintiff was arrested for a different reason and released without charge.

Plaintiff's Arguments

• The Plaintiff argued that England was the appropriate forum as the tortious event (publication) occurred there, and the claim was limited to the English publication where damage is presumed.
• The Plaintiff emphasized his significant connections to England, including his long residence, family ties, and reputation.
• He relied on the legal presumption that the natural forum is where the tort occurred, supported by relevant case law.
• The Plaintiff submitted that the English courts are the natural forum to vindicate his reputation in England.
• He argued that there was no significant difference in costs or convenience between litigating in England or Scotland.
• Regarding the meaning of the words, the Plaintiff submitted that the articles implicated him as involved in the robbery or at least highly likely to have been involved, based on the collective allegations and the context.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cumming v Scottish Daily Record & Sunday Mail Ltd [1995] EMLR 538	Confirmed that English courts could apply forum non conveniens between parts of the UK despite the Brussels Convention.	Supported the court's jurisdiction to consider forum non conveniens between England and Scotland.
Spiliada Maritime Corporation v. Cansulex [1987] AC 460	Established the modern test for forum non conveniens and criteria for granting a stay.	Adopted the principles as the framework for deciding the stay application.
Shevill v Press Alliance [1996] AC 959	Presumption of damage in defamation claims where publication occurs.	Supported the Plaintiff’s position that damage was presumed in England where the publication occurred.
The Albaforth [1984] 2 Ll Rep 91	Presumption that the natural forum is where the tort was committed.	Supported the Plaintiff’s argument on forum appropriateness.
Berezovsky v Michaels [2000] 1 WLR 1004	Forum non conveniens and jurisdiction principles in defamation cases.	Used to support the Plaintiff’s forum argument.
Berezovsky v Forbes [2001] EMLR 45	Principles for delimiting meanings in defamation and the judge’s role.	Guided the court’s approach to assessing defamatory meanings.
Gillick v. Brook Advisory Centres [2001] EWCA Civ 1263	Clarified the judge’s role in defining the range of meanings in defamation cases.	Applied to determine the permissible meanings of the words complained of.
Lukoviak v Unidad Editorial SA [2001] EMLR 46	Consideration of contemporary standards in assessing media-related defamation claims.	Supported the court’s recognition of a more discerning modern readership.
Jameel v The Wall Street Journal [2003] EWCA Civ 1694	Clarified the standard for ruling out meanings as perverse in defamation.	Used to emphasize that meanings outside the permissible range must be rejected.
King v Lewis [2004] EWHC 168 (QB)	Reputation vindication as a factor in determining appropriate forum.	Supported Plaintiff’s argument regarding vindication of reputation in England.
Sim v. Robinow, 19 R. 665	Objective approach to weighing advantages and disadvantages in forum non conveniens.	Cited to reject the notion that plaintiff’s juridical advantage alone should dictate forum.
1926 S.C.(H.L.) 13 (Societé du Gaz case)	Principle that the case should be tried in the best tribunal for the interests of all parties.	Reinforced the court’s balanced approach to forum non conveniens.

Court's Reasoning and Analysis

The court began by examining the jurisdictional framework under the Civil Jurisdiction and Judgments Act 1982 and the Judgments Regulation, concluding that English courts do have jurisdiction to hear the claim and may apply the doctrine of forum non conveniens between parts of the UK. The footnote in Dicey & Morris, which suggested a possible inconsistency in staying proceedings in favor of Scottish courts, was regarded as addressing a different factual scenario and was not determinative here.

The court then reviewed the established principles of forum non conveniens as articulated in Spiliada Maritime Corporation v. Cansulex, emphasizing that the Defendant bears the burden to show that Scotland is a clearly more appropriate forum. The court noted that advantages such as higher damages in England are not decisive and must be weighed against the interests of all parties and justice.

The Defendant failed to identify specific factual or legal issues that would make Scotland clearly more appropriate. The Plaintiff’s strong connections to England, including residence, family, and reputation, were acknowledged. The tortious event (publication) occurred in England, and the Plaintiff only sued on the English publication. The court found no reason to conclude that an English jury would be less capable of determining meaning than a Scottish jury.

On the issue of meaning, the court applied the principles from Berezovsky v Forbes and Gillick v Brook Advisory Centres, holding that the judge’s role is to delimit the range of meanings reasonably capable of being understood by the ordinary reasonable reader. The court accepted that the words were capable of bearing the meaning that someone robbed the photographer and that the Plaintiff chased the photographer. However, it rejected the higher pleaded meaning that the Plaintiff was actually guilty of robbery as perverse and unreasonable, only an unduly suspicious reader would draw such an inference. The lesser pleaded meaning—that it was highly likely the Plaintiff was involved—was within the permissible range.

Holding and Implications

The court DISMISSED the Defendant’s application to stay the proceedings on the grounds of forum non conveniens, holding that England is the appropriate forum for the trial of the action. The Defendant failed to demonstrate that Scotland was a clearly more appropriate forum. The Plaintiff’s connections to England, the location of the tortious publication, and the presumption of damage in England supported this conclusion.

On the issue of meaning, the court held that the words complained of were capable of bearing the lesser defamatory meaning pleaded by the Plaintiff but not the higher meaning of actual guilt of robbery.

The decision directly affects the parties by allowing the libel claim to proceed in England and clarifies the application of forum non conveniens between parts of the United Kingdom in defamation cases. No new precedent was established beyond the application of existing principles.