Individuals and organisations have the right to choose where they raise court proceedings - but that doesn't mean that their choice of forum will be accepted by other parties or the courts.

In the recent case of Kennedy v National Trust for Scotland, the Court of Appeal held that the doctrine of forum non conveniens applies when proceedings are issued in England against a party domiciled in Scotland, in relation to harm suffered both in the UK and abroad. Mr Kennedy's subsequent application for permission to appeal this decision to the Supreme Court was refused.

Facts of the case

The case was raised by Mr Kennedy, a photographer, who had taken nude photographs of a female model at Craigievar Castle in Aberdeenshire in 2012. Mr Kennedy claimed that he had verbal consent from the National Trust for Scotland ("the NTS") to take the photographs. The NTS claimed that it would not sanction such photographs being taken on the NTS' property. The daughter of the previous owner of Craigievar Castle (who had gifted Craigievar Castle to the NTS) publicly objected to the photographs.

In response, the NTS issued a press release denying that its consent had been provided for the photographs. This was then issued by the NTS to various Scottish newspapers and was extensively republished in local, national and overseas publications. Mr Kennedy claimed he had suffered reputational damage to his business in Scotland, England and abroad, which caused him a financial loss of £50,000, particularly in relation to a reduction in bookings for his photography training courses.

Even though Mr Kennedy resided in Scotland, he raised proceedings at the High Court in London against the NTS for defamation, negligence and breach of his data protection rights. The NTS defended the court action on the basis that the Scottish courts were the more appropriate forum for the action to be raised. The NTS argued that Mr Kennedy had sought to raise the action in England because this gave the potential to obtain a higher damages award than was possible in Scotland.

The law

As Scotland and England have distinct legal systems, the jurisdiction of either of their courts can be challenged on the basis that the court chosen by the claimant is not the most appropriate forum for determining the dispute. A civil action can be dismissed where a more appropriate and convenient, alternative forum exists.

The general principle is that proceedings should be raised in the most appropriate forum taking into account both the interests of the parties and the interests of justice.In determining which forum is most appropriate, the court considers a number of factors including convenience and expense (bearing in mind the location of witnesses), the law governing the dispute and where the parties reside or operate their business.

The decision

Primarily on the basis that both parties were domiciled in Scotland and that the underlying events took place in Scotland, the High Court decided that the English action should be stayed (paused) under the doctrine of forum non conveniens, as Scotland was the most appropriate forum for hearing the case. The Court of Appeal upheld this decision.

Mr Kennedy sought to challenge the decision of the Court of Appeal by having the matter determined by the Supreme Court, but his application for permission to appeal to the Supreme Court was rejected on the basis that it did not "raise an arguable point of law".

Kennedy v National Trust for Scotland is a cautionary tale for any parties who find themselves involved in a cross-border or international dispute to seek legal advice and to carefully consider in which forum it is most appropriate to sue.