Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 20
P869/13	OPINION OF P ARTHURSON, QC (Sitting as a Temporary Judge)   in the Petition of   MARTIN CLARK AND ANOTHER   Petitioners;   against   TRIPADVISOR LLC   Respondents:   for an Order under the Administration of Justice (Scotland) Act 1972, section 1(1A) ________________

 

Petitioners: Henderson; Gillespie Macandrew LLP

Respondents: O'Brien; Brodies LLP

 

6 February 2014

 

Introduction
[1] The petitioners aver that in the course of 2012 they operated a guest house in Kinlochleven and that during that year certain reviews appeared on a website, operated by the respondents, known as "TripAdvisor". These reviews were unfavourable in their terms and ex facie defamatory of the petitioners. The respondents are incorporated under the law of the Commonwealth or State of Massachusetts and have their principal place of business in that state. The respondents have an office in London but no presence within this jurisdiction. The petitioners seek an order from the court ordaining the respondents to disclose the names, addresses and other such information that they have as to the identity of those persons who posted the said reviews in 2012. The order is sought in terms of section 1(1A) of the Administration of Justice (Scotland) Act 1972, as amended, which is in the following terms:

"(1A) Without prejudice to the existing powers of the Court of Session and of the sheriff court, those courts shall have power, subject to subsection (4) of this section, to order any person to disclose such information as he has as to the identity of any persons who appear to the court to be persons who-

 

(a) might be witnesses in any existing civil proceedings before that court or in civil proceedings which are likely to be brought; or

 

(b) might be defenders in any civil proceedings which appear to the court to be likely to be brought."

 

The petitioners aver that the Court of Session has jurisdiction by virtue of the fact the proceedings are likely to be brought in a Scottish court. The petitioners further aver that they have not agreed to promulgate the jurisdiction of their application to another court.

[2] In response the respondents have tabled a plea of "no jurisdiction", averring that they have no place of business within the United Kingdom and that the London office referred to by the petitioners is the registered office of their subsidiary. The respondents further aver that the registration process in respect of the website founded upon in the petitioners' application requires users expressly to accept certain terms of use which promulgate the exclusive jurisdiction of the courts of the State of Massachusetts. In any event, the respondents' position in their pleadings is that the information sought by the petitioners is not held in Scotland.

 

Submissions for the petitioners
[3] Mr Henderson, for the petitioners, intimated at the outset of his submission that, notwithstanding his averments, the first petitioner accepted that he had ticked a box in the course of his use of the website and he was accordingly bound by the terms and conditions founded upon by the respondents.

[4] The postings placed on the website in the course of 2012 were, in counsel's submission, plainly defamatory and would sound in damages. The court could be quite satisfied, counsel advised, that proceedings would be brought in the event that the instant application to identify those posting the reviews was successful. The loss or damage to the petitioners had occurred in Scotland and the petitioners would be raising proceedings in the Court of Session. Counsel could think of no other country where damage could have occurred, as most of the petitioners' clientele were walkers on the West Highland Way. Insofar as the respondents purported to have contracted out of liability for actions of defamation, by implication the respondents, in setting up this purported prohibition, must have envisaged that there would be disputes between hotel owners and reviewers on the website.

[5] The main thrust of counsel's submission was that these petition proceedings comprised an ancillary process to a principal dispute which was not between the petitioners and the respondents, but was instead one between the petitioners and a third party or parties. The jurisdiction clause founded upon by the respondents in their terms and conditions, triggered by use of the website by the first petitioner, and produced within 7/1 of process, provided as follows:

"This Website is operated by a U.S. entity and this Agreement is governed by the laws of the State of Massachusetts, USA. You hereby consent to the exclusive jurisdiction and venue of courts in Massachusetts, USA and stipulate to the fairness and convenience of proceedings in such courts for all disputes arising out of or relating to the use of this Website. You agree that all claims you may have against TripAdvisor arising from or relating to the Site must be heard and resolved in a court of competent subject matter jurisdiction located in the state of Massachusetts."

 

Given the ancillary nature of the current proceedings, counsel argued that there was no express prohibition within this term preventing this petition from being presented before a non-Massachusetts court. Counsel submitted that the terms founded upon by the respondents were not ambiguous, but in the event that ambiguity was perceived, counsel founded on the general presumption in favour of construction of the clause contra proferentem: Gloag on Contract, 2^nd edition, 400, and contended that such a construction would require necessarily to favour the petitioners.

[6] Counsel turned next to deal with what he described as the extra-territorial effect of his application. He observed that section 1(1A) of the 1972 Act did not refer to the giving of evidence or indeed to applications for commission and diligence; rather, the order within the section 1(1A) applied instead to the less onerous task of disclosing information. The logic of the respondents' objection would lead to a conclusion whereby the Court of Session could not pronounce an order to the effect that a person in Berwick-upon-Tweed disclose information in respect of a potential defender in a prospective Court of Session action. Put short, counsel's position was that as long as proceedings were likely to be brought in the Court of Session, it would be competent for the Court of Session to make an ancillary order under section 1(1A) of the Act; and, standing that the Court of Session had jurisdiction to hear a putative action of defamation, which was not a matter of contention, the petitioners could accordingly competently ask this Court to make the order sought. The question as to whether this was enforceable was a separate problem which may require to be faced by the petitioners at a later date, but was not relevant for the purposes of a discussion of matters of jurisdiction. Counsel founded upon De Duca v Sillitoe [1936] 52 Sh Ct Reports 18, in terms of which a sheriff substitute in Glasgow ordained the Chief Constable to furnish the names and addresses of two of his police officers within a certain time period. Counsel submitted that even if the respondents declined to exercise what he described as the "usual comity", his clients would nevertheless retain a Court of Session order which would allow them to seek what he described as a "decree conform" in Massachusetts. The terms of section 1(1A) of the Act gave the Court of Session an express power in respect of the ordaining of a third party or parties to disclose information held as to the identity of persons who might be defenders in any civil proceedings which would be brought in Scotland. The nature of this power was such that, standing the concession made by the respondents on jurisdiction in any subsequent substantive action, the issue of the extra‑territoriality of application of the 1972 Act did and could not apply. Counsel submitted that for the respondents to suggest that there was no jurisdiction on the basis that the Court of Session could not compel someone furth of Scotland to do something was to miss the point. Such an order would assist and indeed serve as the foundation of a decree which could be obtained in Massachusetts, even if it was not complied with in terms of comity by the respondents.

[7] Counsel referred to Bonnier Media Limited v Smith 2003 SC 36, observing that in that case the Lord Ordinary appeared to have had no difficulty in interdicting persons in Mauritius, Greece or England. If a harmful event, as here, occurred in Scotland, and sounded in Scottish damages, the Court of Session would clearly have jurisdiction in the petitioners' proposed principal action against those posting reviews in 2012 on the website. It followed, as a matter of necessity, counsel submitted, that jurisdiction was retained by the Court of Session in respect of the present proceedings standing the ancillary nature of these proceedings and the express power founded upon in terms of section 1(1A) of the 1972 Act.

 

Submissions for the respondents
[8] Mr O'Brien, counsel for the respondents, conceded for the purposes of the debate on jurisdiction that no issue was to be advanced on behalf of his clients to the effect that the Court of Session would not have jurisdiction over any substantive claim for defamation to be advanced at a future date on behalf of the petitioners. Counsel advanced two broad submissions in support of his plea of "no jurisdiction": first, that section 1(1A) of the 1972 Act does not confer extra-territorial jurisdiction merely because the prospective proceedings referred to therein are to be brought in Scotland; and, second, in any event, the terms of use set out in 7/1 of process promulgated the exclusive jurisdiction of the courts of Massachusetts.

[9] In respect of his first broad submission, counsel advanced two propositions in law: that section 1(1A) of the 1972 Act cannot be said to confer global jurisdiction on this Court for its purposes; and that the Court has no general common law power to compel disclosure from havers outside its territory. It was of note that section 5(4) of the 1972 Act provided, as an "extent" provision, that the Act "shall extend to Scotland only". Counsel submitted that the construction principle of the presumption against extra-territorial effect had been thereby brought into play. He referred to the speech of Lord Mance in Masri v Consolidated Contractors International (UK) Ltd (No 4) [2010] 1 AC 90 at paragraph 10,at which point Lord Mance addressed submissions from counsel to the effect that the court lacked extra-territorial power, and observed:

"The principle relied upon is one of construction, underpinned by considerations of international comity and law. It is that

 

'Unless the contrary intention appears... an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters': Bennion, Statutory Interpretation, 4^th ed (2002), p282, section 106, cited with approval, along with the considerable case law, by Lord Bingham of Cornhill in R (Al-Skeini) v Secretary of State for Defence (The Redress Trust intervening) [2008] AC 153, para 11."

 

Counsel observed that this was a rebuttable presumption which could be displaced, depending upon who is "within the legislative grasp, or intendment" [per Lord Wilberforce in Clark v Oceanic Contractors Inc [1983] 2 AC 130 at 152C; and Lord Mance in Masri at paragraphs 10 and 26]. Counsel submitted that the presumption could not be rebutted merely by use of general words such as "any person", as utilised in section 1(1A): Thomson v HM Advocate General [1845] 8 ER 1294. It was of note that in terms of the Civil Jurisdiction and Judgments Act 1982, section 28, the powers of the Court of Session to make a section 1 order under the 1972 Act had been extended. This extension suggests strongly, counsel contended, that Parliament had understood the scope of section 1 to be limited to Scotland, as the said extent provision (section 5(4)) had already made explicit. The proper approach for the petitioners to follow in seeking to obtain the identities of the website reviewers was to apply to the court in Massachusetts. It was of note that letters of request procedure could be available to the petitioners. In any event, all relevant considerations in the present case indicated that section 1(1A) was not to be construed as conferring a general jurisdiction over persons furth of Scotland who were not otherwise subject to the jurisdiction of the Court of Session.

[10] In respect of any general common law power to compel disclosure from havers furth of Scotland, counsel submitted that it was long settled that the Scottish courts have no jurisdiction to compel disclosure from such a haver. While there is well-established authority that a Scottish court may grant commission and diligence in respect of documents held abroad (Maitland v Maitland (1885) 12 R 899, per Lord Shand at 904‑905), it is important to remember that this is not an order directed at a particular haver nor does it ordain that haver to provide certain information, the observations of Lord Shand in Maitland pertaining to "a diligence against havers generally for the recovery of documents". Counsel further observed that there was no authority for an extra-territorial common law jurisdiction in relation to the disclosure of the identities of witnesses or defenders. The only reported case on the matter was the sheriff court case of De Duca, founded on by Mr Henderson, supra, in which of course there were no extra‑territorial aspects.

[11] Finally, counsel turned to the jurisdiction clause in the terms of use set out, supra, at paragraph [5]. He submitted that such a clause required to be liberally construed, on the principle that parties who have chosen a forum by agreement are likely to have intended that all disputes between them be dealt with in the one forum. On the basis of this principle, counsel submitted that the scope of the clause was, in this case, sufficient to cover an issue of the sort raised in this petition. Counsel referred to Fiona Trust & Holding Corporation and others v Privalov and others [2007] 4 All ER 951, in which the House of Lords considered the effect of a combined jurisdiction and arbitration clause, founding upon the following passage in the speech of Lord Hoffman at paragraph 13:

"In my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction."

 

Counsel submitted that the dispute between the petitioners and the respondents in these proceedings plainly arose out of the use of the website, and in the event that the court deemed there to be any ambiguity, the contra proferentem construction principle required to yield to the said Fiona Trust presumption set out by Lord Hoffman. The ambit of the terms and conditions when considered generally applied not only to the use of the website by persons such as the petitioners but also to claims that persons such as the petitioners may purport to have arising in consequence from actings in the course of the use of the website by others. Counsel referred specifically to the liability disclaimer set out in 7/1 of process, which was in the following terms:

"The information, software, products, and services published on this website may include inaccuracies or errors. TripAdvisor, its subsidiaries and corporate affiliates (collectively, the 'TripAdvisor Media Group Companies') do not guarantee the accuracy of, and disclaim all liability for any errors or other inaccuracies relating to the information and description of the hotel, air, cruise, car and any other travel products displayed on this website (including, without limitation, the pricing, photographs, list of hotel amenities, general product descriptions, etc.)"

 

He further referred to the "Notice and Take-Down Policy for illegal content":

 

"TripAdvisor operates on a 'notice and takedown' basis. If you have any complaints or objections to material or content including User Messages posted on this Site, or if you believe that material or content posted on this Site infringes a copyright that you hold, please contact us immediately by following our notice and takedown procedure. Click here to view the Notice and Takedown Procedure. Once this procedure has been followed TripAdvisor will make all reasonable endeavours to remove illegal content within a reasonable time."

 

Counsel submitted that the fact that such matters were dealt with in the substantive terms (7/1 of process) reinforced his submission that the jurisdiction clause contemplated such matters as the use of the website by others under reference to "all disputes arising out of or relating to the use of this Website". It was plain, counsel submitted, from the terms of use, that the clause in issue effectively promulgated the exclusive jurisdiction of the courts in Massachusetts in relation to the subject matter of this petition.

 

Discussion and decision
[12] In terms of the prayer of the petition, the petitioners seek an order from this Court ordaining the respondents to disclose names, addresses and other such information that they have in respect of the identity of those who posted reviews in the course of 2012 on the website operated by the respondents. In the discussion before me, counsel for the respondents advised as a matter of fact that there was no-one in Scotland who could legitimately access the information referred to in the prayer of the petition. The computer systems involved were maintained in Massachusetts. Counsel for the petitioners did not seek to dispute this. Parties were at one that nothing turned on the existence or otherwise of a place of business for the respondents in London or elsewhere in England. There was further no dispute between parties that any substantive defamation action to be brought at a future date at the instance of the petitioners against those posting the reviews could be raised in Scotland. The issue for the court in this debate was accordingly one antecedent to such prospective substantive proceedings, the status of the respondents in the instant proceedings being, in my view, accurately characterised as that of third party havers outside Scotland.

[13] I expressed some surprise in the course of the hearing in respect of Mr O'Brien's factual assertions concerning the lack of accessibility to the information sought in the prayer of the petition. In the internet age, such information must undoubtedly be available to those with a password at the click of a mouse on a computer screen. This has very recently been observed by Tugendhat J in Vidal-Hall and others v Google Inc [2014] EWHC 13 (QB) at paragraph 132 in the following terms:

"In any event, in the world in which Google Inc operates, the location of documents is likely to be insignificant, since they are likely to be in electronic form, accessible from anywhere in the world."

 

[14] I have concluded nevertheless that there is considerable force in Mr O'Brien's position on this matter. I fully accept, as did counsel for the petitioners, that there was no one in this jurisdiction who, as a matter of fact, could legitimately access the information sought. Further, and more significantly, I have concluded that the mere fact that such information could theoretically be accessed from Scotland by someone with a password cannot be a sufficient platform to entitle the petitioners to assert jurisdiction in these proceedings. The issue before the court in these antecedent proceedings must focus upon the location of the haver of information. This is indeed the issue upon which parties joined.

[15] The kernel of the petitioners' submission was to the effect that, provided this Court has jurisdiction to try an action of defamation (which was a matter of concession by the respondents), the petitioners are thereby entitled to ask the court to make the order sought in the prayer of their petition in terms of section 1(1A) of the 1972 Act, this being an ancillary order to substantive prospective proceedings against those who posted reviews on the website operated by the respondents, these proceedings being an ancillary process to the substantive dispute between the petitioners and third parties.

[16] Beguiling though this attractive submission may be, I have concluded that it is not soundly based. The terms of section 1(1A) of the 1972 Act bear repetition at this stage:

"(1A) Without prejudice to the existing powers of the Court of Session and of the sheriff court, those courts shall have power, subject to subsection (4) of this section, to order any person to disclose such information as he has as to the identity of any persons who appear to the court to be persons who-

 

(a) might be witnesses in any existing civil proceedings before that court or in civil proceedings which are likely to be brought; or

 

(b) might be defenders in any civil proceedings which appear to the court to be likely to be brought."

 

[17] The terms of section 5(4) of the Act plainly limit the extent thereof to Scotland, although of course section 28 of the Civil Jurisdiction and Judgments Act 1982 extends the application of section 1. Insofar as section 1(1A) confers power on this court to make an order to any person to disclose certain information, the exercise of that power is, in my view, circumscribed by the said extent provisions. I glean no contrary intention within section 1(1A) in respect of the presumption set out by Lord Mance in Masri, supra, at paragraphs 10 and 26, which presumption is to the effect that an enactment applies to all persons and matters within the territory to which it is declared to extend, but not to any other persons and matters. Indeed, in the course of his submissions counsel for the petitioners did not seek to displace this presumption, nor did he challenge it as a sound principle of statutory construction.

[18] As I understood the petitioners' position as advanced through counsel's submissions and as set out in their averments, this court has jurisdiction in these petition proceedings by virtue of the fact that substantive proceedings are likely to be brought in this court in due course. There is, in this proposition, a misconception, in my view, of the nature of the power conferred on the court by Parliament in terms of section 1(1A) of the Act. For there to be force in the petitioners' submissions on this matter, I would require to construe section 1(1A) as containing grounds of jurisdiction. Standing the nature of the extent provisions already discussed and the application of the presumption against extra-territorial application set out by Lord Mance in Masri, supra, which I have not found to be displaced in this case, I cannot so construe this section. In my view, what is set out in section 1(1A) of the 1972 Act are rules of substantive law setting out the scope of an enacted power, and section 1(1A) should not therefore be considered and construed as a provision setting out, inter alia, grounds of jurisdiction. To accede to the petitioners' position as urged upon the court in respect of this section would be, as a matter of irresistible logic, to accept that section 1(1A) does indeed confer a potentially global jurisdiction on the Court of Session for these purposes. I think that I can properly discount, in its entirety, the case of De Duca, founded upon by Mr Henderson, supra, as a case in which there was no extra-territorial aspect whatsoever. Similarly, I consider Bonnier Media Limited, supra, to be of no assistance on the basis that, on my reading of the Lord Ordinary's Opinion, in that case the issue was simply the extent of jurisdiction in respect of potentially wrongful actings in the context of interdict.

[19] For these reasons, I conclude that section 1(1A) of the 1972 Act does not empower the Court of Session with worldwide jurisdiction to ordain persons such as the respondents to produce information. Indeed, I conclude that the approach contended for on behalf of the petitioners would require the court in turn to make a rather alarming entirely global assertion of jurisdiction, which would, in my view, for the foregoing reasons be wholly misconceived. I further conclude that there is no basis at common law to support any proposition to the effect that there is general jurisdiction to compel disclosure of information (or indeed documents) from a haver furth of Scotland.

[20] With regard to prorogation by the parties of the exclusive jurisdiction of the courts of Massachusetts, counsel for the petitioners submitted that the term (in 7/1 of process) "all disputes arising out of or relating to the use of this Website" did not include antecedent matters such as that arising in the present petition. His position was that there was no ambiguity, but in the event that there was any ambiguity, he founded upon the contra proferentem principle of construction. On a proper reading of the clause, he submitted, one would not expect parties to be required to litigate all disputes in Massachusetts.

[21] I have concluded that this submission also is without foundation. In Fiona Trust & Holding Corporation and others, supra, Lord Hoffman at paragraph 4 referred to the clause which their Lordships were considering in that case as a "jurisdiction and arbitration clause". As an exercise of construction, Fiona Trust sets out the starting assumption that parties are likely to have intended any dispute arising out of the relationship into which they had entered to be dealt with in the one forum. The phrase set out in 7/1 of process, namely "all disputes arising out of or relating to the use of this Website", is in my view comprehensive and unambiguous. The present petition proceedings are, if they are anything at all, a dispute arising out of the use of the website. That such disputes can be taken as having been envisaged by the parties to include use of the website by third parties can be ascertained by a fair reading of the terms and conditions (7/1 of process) as a whole. I refer here to the terms set out, supra, at paragraph [11] under the heads "Liability Disclaimer" and "Notice and Take-Down Policy for illegal content". The former purports to disclaim liability for inaccuracies or errors published on the website. The latter expressly refers to "complaints or objections to material or content including User Messages posted on this Site". I accordingly conclude that the present petition proceedings fall within the scope of the jurisdiction clause. The gravamen of the petitioners' application is that they are entitled to information relating to reviews posted in 2012 on the website operated by the respondents. Put plainly, in my view, such a dispute must be said to arise out of, or in any event, to relate to, the use of the website. On this reading of the clause, I am satisfied that the respondents' contention in respect of promulgation is well-founded.

 

Disposal
[22] For all of these reasons I will sustain the plea-in-law for the respondents and refuse the prayer of the petition. I reserve meantime all questions of expenses.