Jay Murray, Murray Telecommunications Group Limited, Murray Telecommunications Limited and Murray Telecommunications (UK) Limited (plaintiffs) v Times Newspapers Limited (defendant).

Libel - Claim for damages - Whether the courts here have jurisdiction where claim made for special damages arising from loss incurred in another jurisdiction - Brussels Convention - Whether a claim can be made for loss in the value of shares arising from libel - Relevant jurisdiction - Consequences of entering an unconditional appearance to the action - Nature and extent of national court's jurisdiction - Jurisdiction of Courts and Enforcement off Judgments (European Communities) Act 1988.

The High Court (before Mr Justice Barron), judgment delivered 12 December 1995.

UNDER the Brussels Convention which is part of Irish law by virtue of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988, persons whatever their nationality may only be sued in the courts of the state in which they are domiciled. This principle is however subject to certain exceptions. Article 5 rule 3 provides that a person domiciled in a contracting state may, in another contracting state, be sued "in matters relating to tort, delict or quasi delict, in the courts of the place where the harmful event occurred". Article 18 of the Convention provides that once a defendant has entered an unconditional appearance to an action he thereby disentitles himself from arguing that the courts with seisin of the matter have no jurisdiction.

Once jurisdiction has been established, that jurisdiction conferred on the national court is the ordinary jurisdiction that that court would be entitled to exercise in respect of the claim being made, and any attempts to limit the extent of the plaintiff's claim would not be dealt with at the interlocutory stage as such matters were peculiarly within the province of the trial judge.

Mr Justice Barron so held in refusing the defendant's application for an order striking out the plaintiffs' claim for special damage for loss which occurred outside this jurisdiction and also in refusing to strike out a claim by the first and second named plaintiffs for damages due to a decrease in the value of the plaintiff company's shares resulting from the alleged libel complained of. Garrett Cooney SC, Peter Shanley SC and Gerard Danaher BL for the plaintiffs; Peter Kelly SC, Kevin Feeney SC and Elizabeth Dunne BL for the defendant.

MR JUSTICE BARRON said that the proceedings arose out of the plaintiffs' claim for damages for libel as a result of newspaper articles appearing in the Sunday Times newspaper of 17 and 24 March 1991. The third and fourth plaintiffs were companies engaged in the telecommunications industry which were both wholly owned subsidiaries of the second plaintiff, of which the first plaintiff was the majority shareholder. He said that the Plenary Summons was issued on 27 March 1991, followed a day later by the statement of claim which was in the normal form for a claim arising from an alleged libel published within the state.

The defendant entered an unconditional appearance to the claim on 15 April 1991 and subsequently delivered its defence on 21 July of the same year. The said defence raised the claim of justification.

By letter dated 17 June 1991, the defendant sought particulars of the loss and damage alleged to have been suffered and sustained by the plaintiff. In reply, by letter of 9 February 1993, the plaintiffs stated that they were claiming for the damage and loss suffered by the plaintiffs' business in the United Kingdom, which was continuing. The reply then went on to detail the loss of profits attributable to the business of the fourth plaintiff which was claimed at the sum of £6,060,000 and which was continuing.

In the same letter of 9 February 1993 the plaintiffs claimed for the loss to the second plaintiff result in a from the decrease in the value of its shareholding in the fourth plaintiff company, estimated to be £21,980,000. The loss being claimed by the first plaintiff was the consequent decrease in the value of his shareholding in the second plaintiff company. In a subsequent letter the plaintiffs' specifically stated that their claim was not confined to the damage suffered by them as a result of publication within this jurisdiction only.

Mr Justice Barron stated that this matter came before him by virtue of the defendant's application to strike out the particulars of special damage contained in the letter dated 9 February 1993 above, relating to losses incurred in the United Kingdom, and also to strike out the claims by the first and second plaintiffs based on their loss resulting from the decrease in their shareholdings.

The defendant grounded its application with respect to the fourth plaintiff's claim on two grounds firstly that under the Brussels Convention the court had no jurisdiction to hear a claim where the damage did not arise from publication within this jurisdiction; and secondly, it was argued that in any event there existed no evidence that such damage arose by reason of such publication and accordingly the claim should not be entertained.

In relation to the loss claimed by the first and second plaintiffs relating to their shareholdings, the defendant based its application on the proposition that loss to a company does not give rise to a claim by its shareholders.

Mr Justice Barron went on to consider the implications of the Brussels Convention which he stated was part of our domestic law by reason of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988. He said that for the purposes of the Convention, subject to certain exceptions, persons whatever their nationality may only be sued in the courts of the state in which they are domiciled. One such exception is contained in Article 5 rule 3 which provides that a person who is domiciled in a contracting state may, in another contracting state, be sued - "in matters relating to tort, delict or quasi-delict, in the courts of the place where the harmful event occurred".

However, the summons or other originating document must set out the ground upon which the plaintiff is relying to found the jurisdiction of the national court. The relevant endorsement on the summons was present in the case before the court as required.

Mr Justice Barron said that in order for the courts of this state to have jurisdiction in relation to a tort involving a defendant who is not domiciled here it would be necessary to show that the harmful event upon which the cause of action is based occurred within this jurisdiction.

In relation to this Mr Justice Barron considered the judgment of the Court of Justice of the European Communities delivered on 7 March 1995 in the case of Shevill v Presse Alliance S.A. which set out when and in respect of what damage a defendant in a libel action may be sued in the courts of a state in which he is not domiciled and what law should be applied by the court found to have such jurisdiction. That case related to an alleged libel published in France Soir, a newspaper produced and mainly distributed in France. Proceedings were commenced in the courts of England and Wales claiming damages arising from the publication in that jurisdiction of an article alleged to be libellous of the plaintiffs and the question arose as to whether those courts would have jurisdiction to hear and determine the matter. The court held - " . . . on the proper construction of the expression 'place where the harmful event occurred' in Article 5(3) of the Convention, the victim of a libel by a newspaper article distributed in several contracting states may bring an action for damages against the publisher either before the courts of the contracting state of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule soley in respect of the harm caused in the state of the court seised."

In relation to the law to be applied by the court seised, the Court of Justice held that the criteria for assessing whether a harm was suffered by the plaintiff as a result of the alleged defamation and of the evidence required was that of the substantive law determined by the national conflict of laws rules of the court so seised provided that the effectiveness of the Brussels Convention is not thereby impaired.

Mr Justice Barron concluded that having regard to the above decision, the claim to special damage arising in the United Kingdom was not one coming within Article 5(3) of the Brussels Convention.

Mr Justice Barron went on to consider the implications for the defendant of entering an unconditional appearance to the proceedings. The plaintiffs submitted that under the provisions of Article 18 of the Convention, once an appearance has been entered to court proceedings that court shall have jurisdiction save where the appearance has been entered solely for the purposes of contesting jurisdiction or where another court has exclusive jurisdiction by virtue of Article 16. He continued that it was common case that Article 16 did not apply in this case and that the appearance had not been entered solely to contest jurisdiction.

The defendants argued that their appearance was entered in circumstances where they were unaware that the plaintiffs' claim included a claim for damages for loss incurred outside this jurisdiction. Mr Justice Barron in rejecting that argument stated that it was clear from both the letters dated 9 February 1993 and 14 November 1994, that the plaintiffs' claims were not confined to the damage suffered by them as a result of publication within this jurisdiction only.

Mr Justice Barron then considered the reasons put forward by the parties as to why the defendant delayed in making this application. The defendant contended, in the affidavit of Anthony Whitaker sworn on 20 September 1995, that its delay was due to the fact that, after receiving advice from counsel here and in the United Kingdom, it sought further and better particulars of the plaintiffs' claim, by letter dated 15 September 1994, which particulars they would require to bring this application.

The plaintiffs argued that the delay resulted from the defendant waiting until the Statute of Limitations ran as against their claim within the United Kingdom which it did some few days before this application was brought. Mr Justice Barron said that it might have also been the case that the defendant was alerted to the fact that the fourth plaintiff's claim for special damage did not lie in this jurisdiction by the judgment in Shevill v Presse Alliance S.A.

Mr Justice Barron referred to the cases of Campbell International Trading House Ltd v Van Art [1992] ILRM 663 and O'Neill v Ryan [1993] ILRM 557, which he said were authority for the proposition that even where there has been an unconditional appearance entered the court may entertain an application to strike out the claim for want of jurisdiction but that such applications would only succeed in cases where there existed something in the nature of mistake or similar justifying circumstance. He felt that it would not be necessary for him to consider what those justifying circumstances would be as he was satisfied that the present application had no merit and that the reason given for the defendant's delay was incorrect.

With respect to the jurisdiction which this court is entitled to exercise, Mr Justice Barron said that by virtue of Article 18 of the Convention the court has jurisdiction once an unconditional appearance has been entered. He said it was his view that jurisdiction was the ordinary jurisdiction which the court would be entitled to exercise in defamation cases. Mr Justice Barron therefore concluded that it was up to the trial judge alone to decide whether or not the statement of claim, as pleaded, supported a claim for damages arising within this jurisdiction and not a claim elsewhere.

Order 19 rule 27 of the Rules of the Superior Courts gives the court the power to strike out matters which are unnecessary or scandalous or which may tend to prejudice, embarrass, or delay the fair trial of an action. The court may also strike out matters which it considers disclose no cause of action or where the proceedings are frivolous or vexatious. In the case before him, Mr Justice Barron considered that the real issue was whether or not the fourth plaintiff's claim as pleaded would permit a claim for special damages arising outside the jurisdiction.

Mr Justice Barron, in refusing the defendant's application, held that in this case, whether the plaintiffs' pleadings entitle them to recover damages for loss suffered outside the jurisdiction or for the loss suffered as a result of the decrease in the value of the shareholding were factors to be considered by the trial judge and that it was not the practice of the courts here to deal with interlocutory applications the purpose of which was to limit the extent of the plaintiffs' claim.

Solicitors: Gore & Grimes (Dublin) for the plaintiffs, A & L Goodbody (Dublin) for the defendant.