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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ewins v. Carlton U.K. Television Ltd. [1997] IEHC 44; [1997] 2 ILRM 223 (3rd March, 1997) URL: http://www.bailii.org/ie/cases/IEHC/1997/44.html Cite as: [1997] IEHC 44 |
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1. The
actions named in the title hereof are similar and the same preliminary issue is
raised by the defendants in the each of them. Conditional appearances
challenging the jurisdiction of this court have been entered by the defendants
to the plenary summonses in all of the actions.
2. The
first defendant (Carlton) is a limited liability company established under the
laws of the United Kingdom and its registered office is in London. It carries
on, inter alia, the business of making, producing, publishing and broadcasting
television documentaries. The second defendant (Ulster Television) is a
limited liability company established under the laws of the United Kingdom
having its registered office in Belfast. It carries on, inter alia, the
business of television broadcasting. Both defendants are members of the
Independent Television Network of Companies (I.T.N.) which publish and
broadcast television programmes for the benefit of viewers in the United
Kingdom and in this jurisdiction.
3. In
each of the actions the respective plaintiffs claim damages, including
aggravated and exemplary damages, for libel arising out of a television
documentary entitled "Confessions" made and published by Carlton and
disseminated to the public by I.T.N., including Carlton and Ulster Television,
on 18th April, 1995. The subject matter of the television broadcast was a
purported account by Eamonn Collins of his activities and experiences as a
member of the Provisional I.R.A., an unlawful organisation within the meaning
of Part 3 of the Offences Against the State Act, 1939, and it contained matters
allegedly defamatory of the plaintiffs.
4. Having
entered conditional appearances in each action, the defendants have sought,
inter alia, the following relief by notices of motion:-
5. In
the grounding affidavit in each case, Michael Kealey, the defendants'
solicitor, has set out the basis for the relief sought by the defendants as
follows:-
6. The
Convention of 1968, the Brussels Convention, is part of Irish domestic law on
foot of the Jurisdiction of Courts and Enforcement of Judgments (European
Communities) Act, 1988. The object of the Convention, to which Ireland and the
United Kingdom are subscribers, is to provide for the allocation of
jurisdictions and the enforcement of judgments in actions which have an
inter-state dimension and thus avoid multiplicity of proceedings and the risk
of inconsistent judgments in member states. Provisions therein relevant to the
matter under review are as follows:-
7. Subject
to the provisions of this Convention, persons domiciled in a Contracting State
shall, whatever their nationality, be sued in the courts of that State.......
9. The
fundamental rule of the Convention is that a defendant shall be sued in the
courts of his/her domicile. However, there are a number of exceptions to that
precept, including that in Article 5(3). The essence of the problem raised on
these motions is whether the plaintiffs are entitled to maintain their actions
against the defendants in this jurisdiction on the ground that the "harmful
event" relating to the tort complained of occurred in this State. The onus is
on the plaintiffs to establish that the circumstances of the case bring them
within the exception relied upon.
10. It
is not in dispute that the documentary programme in question was devised,
published and broadcast by Carlton. The range of its broadcasts is confined to
mainland Britain, primarily in the greater London area. However, it also
supplies programmes for broadcast by other companies in the United Kingdom
which are members of I.T.N.. The documentary "Confessions" was duly supplied
by Carlton to Ulster Television which, simultaneously with Carlton, transmitted
the programme on its network to viewers in Northern Ireland and in this State.
It was received in the latter jurisdiction in one of three ways:-
11. The
number of viewers in this jurisdiction who watched the programme is estimated
by Radio Telefis Eireann to have been 111,000 as calculated by its television
measurement system. Ulster Television also derive advertising revenue from
this State. It is reasonable to assume that the prices charged for such
advertising are based upon the total extent of I.T.N. viewing in this
jurisdiction whether transmissions are received through regular authorised
sources or otherwise. It follows that Ulster Television, as a constituent part
of I.T.N., has an interest in broadcasting to as many people as possible in
this State whether "official" or "unofficial" viewers.
12. The
European Court of Justice considered the interpretation of Article 5(3) of the
Convention in the context of an alleged newspaper libel in
Shevill
and Others -v- Presse Alliance S.A
.,
[1995] All E.R. E.C. 289. The facts were that the first 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. It is mainly distributed in France where sales amount to
more than 237,000 copies daily and only 230 copies were sold in England at the
time of publication. It was argued on behalf of the defendant that under
Article 2 of the Convention, the French courts had jurisdiction in the dispute
and that the English courts did not have jurisdiction under Article 5(3) of the
Convention since the "place where the harmful event occurred" within the
meaning of that provision was in France and no harmful event had occurred in
England. The House of Lords referred the case to the European Court of Justice
for a preliminary ruling on questions relating to the proper interpretation of
Article 5(3). It was held by the latter Court that:
13. The
same problem in the context of television broadcasting was considered by
Carswell L.J. (as he then was) in
Turkington
and Others practising as McCartan Turkington Breen -v- Baron St. Oswald and
British Broadcasting Corporation
,
[6th May, 1996] unreported. The facts were that the plaintiffs are a firm of
solicitors who carry on practice in Belfast. They acted on behalf of Private
Lee Clegg who was prosecuted for murder in Belfast Crown Court and they also
acted for him in his unsuccessful appeal against conviction to the Court of
Appeal. Lord St. Oswald was chairman of a committee formed to press for the
release of Private Clegg. A press conference was held at Lord St. Oswald's
home in Yorkshire at which reporters, including television reporters, were
present at his invitation. It was alleged by the plaintiffs in their statement
of claim that in the course of the press conference he made an observation
about the conduct of the defence of Private Clegg which was defamatory of the
plaintiffs' firm. Lord St. Oswald's remarks were recorded at the time and were
broadcast in a television programme by the B.B.C.. Other words were spoken in
course of the programme which the plaintiffs claim were also defamatory of
them. It was pleaded in the statement of claim that the programme was received
by television viewers throughout the United Kingdom and in the Republic of
Ireland and that the words complained of constitute the tort of defamation
under the laws of England and Wales, Scotland, Northern Ireland and the
Republic of Ireland. A writ of summons claiming damages for libel was served
on the first defendant together with a statement of claim. Solicitors acting
for him entered a conditional appearance and brought an application seeking an
order that the court should set aside the service of the writ of summons upon
the first defendant. The Master found in favour of Lord St. Oswald and the
plaintiffs appealed to the High Court by notice of motion. The judgment of
Carswell L.J. contains the following passage:-
14. I
adopt the reasoning of Carswell L.J. as expressed in the foregoing passage. I
am satisfied that in terms of a television or radio broadcast there is no
distinction between publication and distribution where both happen
simultaneously. In the circumstances of the actions which have given rise to
the motions before me, it would be flying in the face of reality to avoid a
conclusion that Carlton as a member of the I.T.N. group of broadcasters would
be well aware, or ought to have been aware, that any programme provided by it
for re-distribution by Ulster Television would be received also by viewers in
this State. The rule in
Speight
-v- Gospay
applies in this jurisdiction as it does in England and Wales, i.e., the
original publisher of a defamatory statement is liable for its republication by
another person where, inter alia, the repetition or republication of the words
to a third person was the natural and probable result of the original
publication. The natural and probable consequence of providing the programme
complained of to Ulster Television for re-distribution on its network was that
it would reach a significant number of viewers in this jurisdiction and,
accordingly, harm (if there was harm) would be done in this State within the
meaning of Article 5(3) of the Convention. It follows that the plaintiffs are,
prima facie, entitled to maintain their actions against both defendants in this
jurisdiction.
15. The
next question is whether the court has discretion to stay the plaintiffs'
actions on the ground of forum non-conveniens and should do so. Articles 21 to
23 of the Convention deal with problems arising in connection with actions
pending in different Contracting States but they are not relevant to the matter
under review. In the context of the Convention, it appears that if the
plaintiffs can establish that they are within the ambit of the exception
contained in Article 5(3) to the general rule as to jurisdiction, then the
court has no power to refuse jurisdiction on the ground of forum
non-conveniens. However, there is a substantial argument in favour of the
proposition that, not withstanding the absence of any specific provision in the
Convention or in the enabling Act, the court has an inherent jurisdiction to
grant a stay of proceedings to prevent injustice, e.g., where there is evidence
that a plaintiff is improperly using the proceedings and terms of the
Convention to oppress the defendant, or is guilty of unconscionable conduct.
The contra argument is that the motivation of a plaintiff in choosing a
particular Contracting State for his action is not a matter which the court has
jurisdiction to investigate and that, whatever the motivation of a plaintiff
may be, the chosen court cannot refuse jurisdiction in the absence of specific
authority in the Convention and is obliged to give effect to its provisions. I
do not have to resolve that issue as the defendants have not advanced evidence
to suggest that in electing to sue them in this jurisdiction, the plaintiffs
have been guilty of oppression or unconscionable conduct. Having a choice of
jurisdictions, they were entitled to select that which they perceived to be
most advantageous for them. Any consequential disadvantages there may be for
the defendants are very far from constituting a denial of justice for them.
16. The
remaining issue is that of a possible world-wide claim. It does not arise in
the actions brought by Michael Collins and Ciaran McBride. They are not
claiming damages on a world-wide basis but only compensation for injury done to
their credit and reputation within this jurisdiction. Whether David Ewins is
claiming world-wide damages is not presently clear. However, having regard to
the judgment of the European Court of Justice in
Shevill
-v- Presse Alliance S.A
.
to which I have already referred, there is no doubt that a world-wide claim for
damages may be maintained only in an action for libel brought before the courts
of the Contracting State where the publisher is established and that, having
elected to sue in this jurisdiction, the plaintiffs' claim for damages is
limited to harm done to them in this State on foot of the libel alleged. David
Ewins is not entitled to maintain a claim for damages on a world-wide basis in
the present action.