Irving & Anor v Darbyshire & Ors [2013] EWHC 2301 (Admin)

Case No 3MA90252[2013] EWHC 2301 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue MANCHESTER DISTRICT REGISTRY
Sitting at:
Civil Justice Centre
1 Bridge Street
Venue Greater ManchesterDate 29/07/2013
Before
MR JUSTICE TURNER
Between
JONATHAN IRVINGClaimantsJAMIE IRVINGClaimantADRIAN DARBYSHIRE1 st DefendantRICHARD BUTT2 nd DefendantISLE OF MAN NEWSPAPERS3 rd Defendant
Simon Myerson QC (instructed by Greenhalgh Kerr) for ClaimantsChristopher Langley (instructed by Foot Anstey LLP) for DefendantsHearing Hearing dates: 8 th July 2013
JudgmentMr Justice Turner :Introduction
[1]On 31 May 2012, the claimants issued proceedings against the defendants in the Isle of Man alleging defamation and malicious falsehood. The claim was settled on 28 January 2013 at a mediation which took place in Manchester at the chambers of Mr Myerson QC, leading counsel for the claimants.[2]The settlement took the form of a Tomlin Order which was sealed by the High Court of Justice of the Isle of Man on 14 February 2013. The terms of the agreement provided for the defendants to pay the claimants the sum of £70,000 (comprising £30,522.17 in damages and £39,477.83 in costs) within 21 days of the date of the sealing. The terms of the settlement agreement reached in Manchester made no specific reference to the jurisdictional forum in which any further claim arising should be heard.[3]The Deemster’s consent order made on 14 February 2013 provided:
“AND IT IS RECORDED that the parties have agreed that any claim for breach of contract arising from an alleged breach of the terms set out in the Schedule hereto may, unless the court directs otherwise, be dealt with by way of an application to the Court without the need to start a new claim.”
[4]On the same day, the claimants’ solicitor, Mr Usden, sent to Foot Anstey, the defendants English solicitors, a VAT invoice in respect of the costs incurred by his firm and a separate invoice from the claimants in respect of their own costs. The claimants’ invoice for costs was directed to the third defendant and looked for payment by electronic transfer to an account in the Isle of Man. Mr Usden requested that the remaining monies should be sent to his firm’s account at a bank in England.[5]In the event, on 1 March 2013, the defendants transferred the outstanding sums to their Isle of Man advocates, Laurence Keenan where they were held in a client account.[6]On 6 March 2013, Laurence Keenan wrote directly to the second claimant indicating that they were in funds to pay the sum outstanding to the claimants by cheque but requiring the second claimant’s authorisation that the cheque could be made out in the sole name of the first claimant. The letter was “carbon copied” by email to Mr Usden. Mr Usden responded to the effect that he could give good receipt of the monies on behalf of both of the claimants and set out, once more, the details of his firm’s bank account in England.[7]However, also on 6 March 2013, the Coroner in the Isle of Man (whose role is similar to that of the Sheriff in England and Wales) wrote to Laurence Keenan enquiring whether they held any funds to be directed to or for the benefit of either of the claimants. He attached two Notices of Arrest. One was in the sum of £41,173.67 in respect of executions granted to the Isle of Man Government Treasury and directed to the first claimant. The other was in the sum of £17, 986.70 in respect of executions granted to the Performing Rights Society Ltd. and directed to the second claimant.[8]On 7March 2013, Laurence Keenan wrote to each of the claimants asserting that under Isle of Man law the sums currently held by that firm could not be transferred to them. They would hold the monies until a court order was received. Laurence Keenan also wrote to Mr Usden on the same day enclosing copies of the letters sent to the claimants alluding to processes in the Isle of Man for setting aside judgments. Meanwhile, Laurence Keenan wrote to the Coroner admitting that the firm was holding funds for each of the claimants.[9]Mr Usden also wrote to the Coroner; but in less deferential terms. He argued that the monies held by Laurence Keenan were not “held on behalf of on for the benefit of” the claimants but were for the benefit of the defendants to equip them to discharge obligations entered into under an agreed order. “Therefore the effect of these Notices of Arrest has been to put Isle of Man Newspapers Limited into serious breach of that order.” He asserted that the Notices of Arrest were fundamentally flawed and ultra vires and required them to be withdrawn. His letter also raised concerns as to how the Coroner had found out about the sums when the terms of the settlement were secret. (I pause to note that detailed explanations of the precise background circumstances of the Coroner’s involvement and the processes leading to the formulation and deployment of the Notices of Arrest have yet to be made.)[10]On 8 March 2013, Mr Usden wrote to Laurence Keenan repeating the contentions set out in his letter to the Coroner and contending that, by keeping the monies, he was thereby putting the defendants in breach of the settlement agreement.[11]Laurence Keenan’s response of the same day was not conciliatory. He contended that as a matter of Isle of Man law his firm held the monies “for the Irvings”. He invited Mr Usden to take legal steps in the Isle of Man if they considered that he was wrong.[12]On the following Monday, Laurence Keenan relinquished the monies; not to Mr Usden but to the Coroner. Predictably, the correspondence between Laurence Keenan and Mr Usden assumed a more animated tone. Laurence Keenan described Mr Usden’s assertions as being “preposterous and nothing short of posturing.” Mr Usden responded in more courteous but no less firm terms that unless the monies were paid over by close of business on 18 March 2013, proceedings would be brought for their recovery in England.[13]On 15 March, the Coroner wrote to Mr Usden to say that he had made an application to the court in the Isle of Man to “have the matter decided”. Mr Usden was not impressed. He wrote to the Coroner on 21 March 2013 complaining that the application had purportedly been made under the umbrella of the original proceedings in which the Coroner had no standing. He further criticised the Coroner for retrospectively seeking to justify acts which, as a judicial officer, he had already performed. He sought to persuade the Coroner to allow his application to be stayed.[14]The Coroner subsequently applied to the Deemster in the Isle of Man to withdraw his application. Skeleton arguments were exchanged. The matter was to be considered at a telephone hearing. Things did not go according to plan. Mr Myerson QC had not taken the requisite oath to entitle him to appear. The oath could only be valid if taken in the Isle of Man. Accordingly, the court suggested that the matter should be adjourned. In the event, however, an advocate attended for the Coroner and the Deemster gave the Coroner permission to withdraw his application.[15]In the meantime, the claimants had brought a claim against the defendants in the Manchester District Registry of the High Court seeking to recover the outstanding sum of £37,888 together with interest.[16]On 21 June 2013, the defendants applied for a declaration that the proceedings should be stayed on ground of forum non conveniens. It is this application which now falls to be determined.

The procedure

[17]CPR 11(1) provides:
“A defendant who wishes to – (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.”
[18]CPR 11(6) provides:
“An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including – …(d)staying the proceedings.” …(d)staying the proceedings.”

The law

[19]In so far as is material to this case, the law is as set out in rule 38 in Dicey, Morris and Collins The Conflict of Laws (15th Edition):
“…an English court has power to order a stay of proceedings on the basis that England is an inappropriate forum (forum non conveniens) if: (a) the defendant shows there to be another court with competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the action, and (b) it is not unjust that the claimant be deprived of the right to trial in England.”
[20]The first issue arising, therefore, is as to whether the defendants have established (and the burden falls on them) that the jurisdiction of the Isle of Man is clearly or distinctly more appropriate than that of England for the determination of the dispute between the parties.[21]I summarise the defendants’ arguments in support of the contention that the jurisdiction of the Isle of Man is more appropriate than that of England: i) The original claim was brought by pleadings issued in the Isle of Man and the Tomlin Order, sealed in the Isle of Man, expressly gives the parties liberty to apply to the court; thus the Isle of Man is clearly an available forum; ii) The original claim related to events in the Isle of Man and, in particular, to articles published in the Island relating to events which took place on the Island; iii) The parties to the dispute are domiciled and/or habitually resident in the Isle of Man; iv) The key issue in the present litigation is whether Lawrence Keenan was entitled to withhold payment of the settlement monies on the grounds that the Coroner had purported to arrest them. The lawfulness of the Coroner’s actions are matters of Manx law; v) Manx law governs the settlement agreement too; vi) Even if the proceedings were resolved in favour of the claimants in England, the judgment would subsequently have to be enforced in the Isle of Man; vii) If the claimants were successful, the defendants/Lawrence Keenan may have a claim against the Coroner which should be dealt with in the same jurisdiction as the main claim so as to ensure consistency of outcome.[22]As against this, the claimants argue in summary: i) In reality, there is no defence to the claim so the jurisdiction issue is a smoke screen. Their analysis is set out in the skeleton served in respect of the Coroner’s application and that relied upon in respect of this application; ii) The mediation took place in England; iii) The payment was, in fact, coming from an English holding company of the third defendant; iv) The emails from Mr Usden authorised payment to an English bank account; v) Even if the defendants could establish that the Coroner had power to arrest the monies they would have to go further and establish that this was a condition precedent to the contention that their solicitors were entitled to relinquish it. The issue is identified to be one of fact capable of being resolved in England with evidence of Manx Law if appropriate.[23]Neither side asserts that the other’s choice of court lacks jurisdiction.

Discussion

[24]Taken as a whole, I am satisfied that the defendants have established that the clearly and distinctly more appropriate forum for the determination of this claim is the Isle of Man.[25]I make the following observations: i) It may well be that the substantive claim is a strong one and I agree with the claimants that the defence is not fully articulated in the correspondence and other documentation presently available. Nevertheless, the issues arising are not without legal and factual complexities and at least some proportion of the former would have to be resolved by the application of Manx law. I note that in paragraph 34 of its Skeleton Argument prepared for the Coroner’s application, the claimants said (of the argument that the payment to the Coroner was a good discharge of the defendant’s debt to the claimants):
“This is a claim which would have to be fully pleaded and evidenced. It cannot be determined by a summary hearing in a different action in which the Court is asked for guidance.”
Of course, the context of this application is not the same as that which was made by the Coroner in the Isle of Man but I am not sufficiently persuaded that the matter is so straightforward that the claimants are bound to win whichever jurisdiction is engaged; ii) Although the settlement took place in England, this was a matter of logistical convenience which could not be taken to have shifted the jurisprudential centre of gravity away from the place where the initial cause of action had arisen. The preponderance of English participants and the location of the third defendant’s parent company (which, in any event, the defendants submitted to be Scotland) and source of funds are factors of modest weight; iii) It was not part of the agreement that the settlement monies should be paid into an English bank account; this was a unilateral request made, after the event, by the claimant’s solicitors.

The second limb

[26]The question remains whether the claimants have established that it would be unjust for them to be deprived of the right to a trial in England.[27]The claimants contend that they are currently suing the Isle of Man government, have been instrumental in the disciplining of the Attorney General by his professional body and are witnesses in a criminal case involving the Attorney General and a number of highly placed Isle of Man government officials.[28]It is difficult, they assert, to obtain representation in the Isle of Man as evidenced, in part, by the deployment of English leading counsel whose rights of audience were compromised by the rules relating to where he should take the requisite oath.[29]The claimants say that they will not be able to secure a conditional fee agreement in the Isle of Man.[30]I am not without sympathy for the claimants but I have not been persuaded that these factors would render it unjust that they should be deprived of the right of trial in this jurisdiction in circumstances where I have concluded that the Isle of Man is otherwise the appropriate forum. In particular, the claimants conceded, as I would have expected, that notwithstanding the ongoing issues they have with the government, it is not alleged that the judiciary in the Isle of Man is anything other than entirely independent. The hurdles relating to representation and funding are burdensome but there is no evidence to suggest that they would preclude the claimants from proceeding henceforth in the Isle of Man.

Conclusion

[31]It follows from the above that I am satisfied that it is appropriate for me to impose a stay on this claim pursuant to CPR 11 on the grounds of forum non conveniens.