Summary
The claimant was an 11-year old, residing in the USA. The mother was the litigation friend. The first defendant was the father, residing in England. The second defendant was a publisher, based in Scotland.
The claimant sought an injunction restraining the defendants from publishing the first defendant’s book on the ground that it would be harmful for the claimant if the book were published.
On 18th July 2014, the High Court dismissed the claim.
On 9th October 2014, the decision of the High Court was reversed by the Court of Appeal, granting an injunction restraining the publication of the book.
The father’s appeal was allowed by the Supreme Court which restored the order of the High Court judge, striking out the claim.
The implications of the Rome II were addressed by Lady Justice Arden, sitting at the Court of Appeal, held:
“108 The first question is the effect of Article 4(1) in this case. I do not accept the submission that, even though there is no evidence as to Ruritanian law, the presumption that foreign law is the same as English law does not apply. That is a rule of evidence applied by the English courts. As such it is not affected by the Regulation. The choice of law rules laid down by Article 4 apply for the purposes set out in Article 15 of the Regulation, which does not extend to rules of evidence. Article 22 of the Regulation deals with the burden of proof but only in relation to the constituents of the tort in question. […].”
[…]
“112 The second question is whether Article 4(1) would be disapplied under Article 4(3). The court must have regard to all the relevant circumstances. In my judgment, Mr Nicklin is correct to say that it is “likely”, within the meaning given to that word in section 12(3) of the HRA by Cream Holdings , that, in this case English law applies by virtue of Article 4(3). I appreciate that the rule in Article 4(1) is the general rule and should not generally be disapplied, and I accept that it should not be disapplied to gain a juridical advantage. But here the claim arises from the intentional publication of material calculated to cause harm to OPO. That intention was formed within this jurisdiction and the Work was written here and will be published here. Those steps have already been taken. Nothing has happened outside this jurisdiction. The threat to cause harm emanated from this jurisdiction. Moreover the claim is based on harm which has yet to occur. Harm need not occur in Ruritania nor can it only occur in Ruritania. OPO might be in any part of the world when he comes across the material in the Work. He might be having staying contact in London when he comes across the material. The strongest connections of an anticipated wrong to a place are likely to be those which relate to the acts which have already occurred. They provide the most solid and manifest connections with a jurisdiction. Those acts took place in this jurisdiction.” [108 and 112]
The applicable law was very briefly addressed by the UK Supreme Court. Lord Neuberger held:
“121 The final point I should make is that this case has been argued in this court on the basis that the issue between the parties has to be resolved according to English law, rather than the law of the US, where the claimant resides. It may well be that that is right (as the Court of Appeal held), or that, even if United States law is in fact applicable, it is the same as our law.” [2015] UKSC 32 [121]