Factual and Procedural Background
The case involves Plaintiffs collectively known as "The Birmingham Six," who allege they were victims of a notorious miscarriage of justice related to the 1974 Birmingham pub bombings. They claim to have been defamed by a booklet authored by the Second named Defendant, referred to here as Defendant Author, and published by the First named Defendant, referred to as Publisher Company. The Plaintiffs commenced proceedings seeking damages for libel, damages for breach of their constitutional right to their good name under Article 40.3.2 of the Constitution, and an injunction restraining further publication of the defamatory material.
Defendant Author entered a conditional appearance contesting the jurisdiction of the court, while Publisher Company entered unconditional appearances. Defendant Author sought declarations that the court lacked jurisdiction, orders setting aside service, striking out or staying proceedings, and alternatively a stay on grounds of forum non conveniens, though the latter was not pursued at hearing. The claim for breach of constitutional right was conceded by the Plaintiffs to be subsumed into the libel claim, which is governed by the Defamation Act 1961. The Plaintiffs accepted that damages sought relate only to harm suffered within the jurisdiction of the court.
Affidavits were sworn by Defendant Author and two of the Plaintiffs. Defendant Author stated the manuscript was delivered to Publisher Company in London and the book published there. He contended that publication in the jurisdiction was not intended nor a natural and probable consequence of his actions. The Plaintiffs, Irish citizens, asserted the book was circulated in Ireland and that the harm to reputation within Ireland justified jurisdiction. There was ongoing litigation in the English High Court concerning the publication agreement between Defendant Author and Publisher Company, including whether distribution in Ireland was prohibited.
Legal Issues Presented
- Whether the court has jurisdiction over Defendant Author under the Brussels Convention, specifically Article 5(3), in a defamation claim arising from publication of a booklet.
- Whether the publication of the booklet in the jurisdiction was the natural and probable consequence of Defendant Author’s original publication to Publisher Company in England.
- The effect of the publication agreement and any restrictions on distribution within the jurisdiction on the issue of jurisdiction and liability.
Arguments of the Parties
Defendant Author's Arguments
- Jurisdiction is governed by the Brussels Convention. For jurisdiction to exist, Defendant Author must have responsibility for the harmful event occurring in the jurisdiction.
- The only act of publication by Defendant Author was handing the manuscript to Publisher Company in London, which did not occur in the jurisdiction.
- Publication in the jurisdiction by Publisher Company was neither approved by Defendant Author nor the natural and probable consequence of his original publication.
- Discussions were held with Publisher Company to avoid distribution in the jurisdiction, reflecting Defendant Author’s wish to prevent publication there.
- Defendant Author receives no royalties from sales and was entitled only to a nominal contribution for secretarial expenses, indicating limited commercial interest in the jurisdiction.
Plaintiffs' Arguments
- As Irish citizens, Plaintiffs are entitled to bring claims in the jurisdiction for harm to reputation suffered there.
- The booklet was circulated and sold in Ireland, including Northern Ireland and the Republic, reaching the public concerned with the Birmingham Six cause.
- Many witnesses relevant to the case reside in Ireland.
- Plaintiffs accepted no jurisdictional impediment to bringing proceedings in England but maintain jurisdiction in Ireland is proper due to harm suffered there.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ewins v. Carlton [1997] 2 ILRM 223 |
Onus on plaintiff to establish jurisdiction under Article 5(3) of Brussels Convention; limitation of damages to harm suffered within jurisdiction. |
Referenced to confirm limitation of claim to damage within jurisdiction and burden of proof on Plaintiffs to establish jurisdiction. |
| Shevill v. Presse Alliance S.A. [1995] 2 AC 18 |
Victim of libel may sue either in publisher’s state of establishment for worldwide damages or in states where publication occurred for damages limited to harm in that state. |
Applied to interpret Article 5(3) and confirm jurisdiction may be based on place of harmful event; the court limited damages to harm within jurisdiction. |
| Speight v. Gosnay (1891) 60 LJ QB 231 |
Original publisher liable for republication if repetition is natural and probable consequence of original publication. |
Used to analyse whether Defendant Author’s liability extends to publication in jurisdiction as a natural and probable consequence of handing manuscript to Publisher Company. |
| Turkington v. Baron St. Oswald (High Court, Northern Ireland, 2 May 1996) |
Acceptance of common law principle on liability for republication. |
Supports application of Speight principle in Northern Ireland and by analogy in this jurisdiction. |
Court's Reasoning and Analysis
The court considered the jurisdictional provisions of the Brussels Convention, particularly Article 5(3), which allows a person domiciled in one contracting state to be sued in another contracting state where the harmful event occurred. The Plaintiffs bore the burden of proving that the jurisdiction was proper under this exception.
The court acknowledged that the only direct act of publication by Defendant Author was delivering the manuscript to Publisher Company in London. However, the contract granted Publisher Company worldwide publication rights without express restriction on distribution in the jurisdiction, and Defendant Author did not include any such express term in the agreement.
Defendant Author’s efforts to avoid distribution in the jurisdiction, consisting of discussions and a request to Publisher Company, were insufficient to establish that publication in the jurisdiction was not the natural and probable consequence of the original publication to the publisher. The court emphasized that mere wishes or requests without effective contractual or practical measures do not negate the natural and probable consequence test.
Given the subject matter of the booklet, the proximity of England and the jurisdiction, and the interest likely to be shown, the court found it almost inevitable that publication would occur within the jurisdiction. Therefore, the publication in the jurisdiction was a natural and probable consequence of Defendant Author’s act of placing the manuscript with Publisher Company.
Accordingly, Defendant Author had sufficient nexus with the publication in the jurisdiction to be subject to the court’s jurisdiction under Article 5(3) of the Brussels Convention. The court rejected Defendant Author’s contention that the jurisdictional issue should be resolved solely by Convention law distinct from the common law principle on liability for republication.
Holding and Implications
The court DISMISSED Defendant Author’s application challenging jurisdiction. It held that the proceedings were properly brought under Article 5(3) of the Brussels Convention, as the publication in the jurisdiction was the natural and probable consequence of Defendant Author’s original publication act.
The direct effect is that Defendant Author is subject to the jurisdiction of the court in respect of the libel claim. No broader implications or new legal precedents were established beyond the application of established principles concerning jurisdiction under the Brussels Convention and common law liability for republication.