Kennedy v. Aldington & Ors [2005] ScotCS CSOH_58 (06 May 2005)

Kennedy v. Aldington & Ors [2005] ScotCS CSOH_58 (06 May 2005)

The Scottish court refused to sustain the defenders' plea of forum non conveniens because the English forum was no longer available due to limitation, and it would be inequitable to deprive the pursuer of a remedy. The pursuer's pleadings, though discursive, were sufficient to entitle him to proof before answer on defamation, slander of title, and malice. The damage claim must be confined to harm suffered in Scotland.

Citation
[2005] ScotCS CSOH_58
Parties
Pursuer: Ian Kennedy; First Defender: John Aldington; Second and Third Defenders: Others (including Second and Third Defenders)
Jurisdiction
Scotland
Judgment Date
06 May 2005
Procedural Posture
Civil (delict Defamation and Slander of Title) / Interlocutory Judgment on Forum Non Conveniens and Relevancy of Pleadings; Proof Before Answer Allowed
Outcome
Defenders' first pleas-in-law repelled; proof before answer allowed on all other matters.
Legal Topics
Forum Non Conveniens, Defamation, Slander of Title, Jurisdiction, Limitation of Actions, Qualified Privilege, Malice, Damage to Reputation
Civil Procedure Defamation Private International Law Forum Non Conveniens Slander of Title Jurisdiction Limitation of Actions Qualified Privilege +2 more

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Parties

Ian Kennedy

Pursuer

John Aldington

First Defender

Others (including Second and Third Defenders)

Second and Third Defenders

Procedural Posture

Civil (delict Defamation and Slander of Title) / Interlocutory Judgment on Forum Non Conveniens and Relevancy of Pleadings; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether the Scottish court should decline jurisdiction on grounds of forum non conveniens in favour of English courts
  2. 2 Whether the pursuer's pleadings are relevant and sufficiently specific to proceed to proof on defamation and slander of title
  3. 3 Whether the pursuer has sufficiently averred malice to overcome qualified privilege

Ratio Decidendi

The Scottish court refused to sustain the defenders' plea of forum non conveniens because the English forum was no longer available due to limitation, and it would be inequitable to deprive the pursuer of a remedy. The pursuer's pleadings, though discursive, were sufficient to entitle him to proof before answer on defamation, slander of title, and malice. The damage claim must be confined to harm suffered in Scotland.

Court Disposition

Defenders' first pleas-in-law repelled; proof before answer allowed on all other matters.

Orders

  • Refused to sustain plea of forum non conveniens; Scottish court retains jurisdiction.
  • Proof before answer allowed on defamation, slander of title, qualified privilege, and malice.