Further to my blogpost yesterday on the Sunday Herald identification of CTB as well as fielding of cries of bemusement from English lawyers and journalists (Q. but how could they? A. It’s a different system.) I was asked if CTB was insistent on pursuing an injunction in England what could he have done to stop a Scottish newspaper publishing and distributing within the Scottish jurisdiction a story relating to his injunction?
The answer is simple – so simple that it is astonishing that the lawyers of the various celebrities seem unaware of the position, instead relying on the imperial might of English law to reach the jurisdictions that other jurisdictions cannot reach.
“The Court of Session may, in any case to which this subsection applies, –
(c) grant interim interdict”
This covers the cases in England and Northern Ireland (as per s 27 (2)(a)) where proceedings have been raised but not finalised (Scottish courts historically did not enforce interim remedies from other systems, and that broad principle is largely followed by other sections of the 1982 Act).
The section has been used a number of times including the rported case of G v Caledonian Newspapers 1995 SLT 559. In this decision an interim injunction had been granted in England. The facts would not have led to an interdict being granted in Scotland and it was argued by the newspapers that that meant that the Scottish court had no obligation to grant the interim interdict.
Lord Marnoch in the Outer House granted the interim interdict.
“while the exercise of the powers conferred on the Court of Session under s 27 of the 1982 Act is clearly a matter for discretion, it seems to me that, so far as grounds of action are concerned, it will normally be enough that a prima facie case is made out according to the jurisprudence of the foreign court. Of course, in the absence of evidence to the contrary, there is assumed to be no difference between foreign law and Scots law and so, in practice, Scots law will frequently be applied in incidental applications of this nature. Where, however, as here, the foreign court has already pronounced an order which it is sought to enforce in Scotland on an interim basis, then there seems to me to be no reason why, in the exercise of comity, this court should not lend its aid in the manner sought by the petitioners.”
It’s not tricky. The Scottish courts have a history of taking a friendly approach to enforcement of foreign judgments (when asked) – unlike the judges in our neighbouring kingdom. But if you don’t ask, you won’t get. And your client is – to use a technical expression familiar to Scots lawyers – shafted.