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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 110

P869/13

Lady Paton

Lord Menzies

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY PATON

in the Petition of

MARTIN CLARK and JAQUI CLARK

Petitioners and Reclaimers;

against

TRIPADVISOR LLC

Respondents:

for an order under the Administration of Justice (Scotland) Act 1972, section 1(1A)

Petitioners and Reclaimers:  G Henderson;   Gillespie Macandrew LLP

Respondents:  O’Brien;  Brodies LLP

19 December 2014

Introduction

[1]        The petitioners own and run a guest house at Kinlochleven near the West Highland Way in Scotland.  The respondents are an American company incorporated under the law of the state of Massachusetts.  They operate a website which inter alia posts details of hotels, guest houses, and bed-and-breakfasts, together with ratings and comments by guests.

[2]        The respondents aver that the petitioners registered with their website on 2 June 2011, and in so doing, expressly acknowledged and accepted the respondents’ Terms of Use.  Whilst that averment is met by a general denial and an explanation that it was the petitioners’ predecessors who registered, counsel for the petitioners advised this court that it was not disputed that the petitioners had “ticked the box” on the website which had the effect of binding them by the respondents’ terms and conditions.  However it was explained that they had ticked the box only because they could not otherwise make progress on the website.  As a result, counsel submitted, the contra proferentem rule of construction should apply (see paragraph [14] below).

[3]        In February and March 2012, unfavourable reviews of the guest house were published on the respondents’ website.  The petitioners wish to sue the authors of those reviews for defamation.  However the authors used pseudonyms, namely “dreckit Manchester”, and “edna B London United Kingdom”.  In this petition, the petitioners seek to recover information about the authors’ identity from the respondents, founding on section 1(1A) of the Administration of Justice (Scotland) Act 1972 (the 1972 Act).

 

Relevant legislation

The Administration of Justice (Scotland) Act 1972

[4]        The 1972 Act, as originally enacted, empowered the Court of Session and the sheriff court to order the recovery of documents and other property which appeared relevant in existing civil proceedings or in civil proceedings likely to be brought.  A new section, section 1(1A), was inserted by the Law Reform (Miscellaneous Proceedings) (Scotland) Act 1985 in the following terms:

“Without prejudice to the existing powers of the Court of Session and of the sheriff court, those courts shall have power, subject to subsection (4) of this section, to order any person to disclose such information as he has as to the identity of any persons who appear to the court to be persons who –

  1. might be witnesses in any existing civil proceedings before that court or in civil proceedings which are likely to be brought;or
  2. might be defenders in any civil proceedings which appear to the court to be likely to be brought.”

 

Section 5(4) of the 1972 Act provides:

“This Act shall extend to Scotland only.”

 

 

The Civil Jurisdiction and Judgments Act 1982
[5]        Section 28 of the 1982 Act provides:

“(1) When any proceedings have been brought, or are likely to be brought, in another Brussels or Lugano Contracting State, in a Regulation State, or in England and Wales or Northern Ireland in respect of any matter which is within the scope of the Regulation as determined in Article 1, the Court of Session shall have the like power to make an order under section 1 of the Administration of Justice (Scotland) Act 1972 as amended by the Law Reform (Miscellaneous Provisions (Scotland) Act 1985 as if the proceedings in question had been brought, or were likely to be brought, in that court.

(2) When any proceedings have been brought or are likely to be brought in another Maintenance Regulation State or in England and Wales or Northern Ireland in respect of any matter which is within the scope of the Maintenance Regulation as determined by Article 1 of that Regulation, the Court of Session has the like power to make an order under section 1 of the Administration of Justice (Scotland) Act 1972 as if the proceedings in question had been brought, or were likely to be brought, in that court.”

 

 

The Civil Jurisdiction and Judgments Act 1982 (Provisional and Protective Measures) (Scotland) Order 1997, SI 1997/2780

“ … 2.  The Court of Session shall have power to do anything mentioned in section 27(1) or 28(1) of the Civil Jurisdiction and Judgments Act 1982 in relation to proceedings of the following descriptions, namely: -

  1. proceedings commenced otherwise than in a Brussels or Lugano Contracting State;
  2. proceedings whose subject-matter is not within the scope of the 1968 Convention as determined by article 1 thereof …”

The respondents’ terms and conditions
[6]        The respondents’ terms and conditions provide inter alia:

Privacy policy

 

TripAdvisor is an online service that provides recommendations for hotels, resorts, inns, vacations, travel packages, travel guides, flights, vacation rentals, and lots more …

We understand that providing information online involves a great deal of trust on your part.  We take this trust very seriously, and make it a high priority to ensure the security and confidentiality of the personal information you provide to us ...

 

 

With whom we share your information

 

TripAdvisor may share your information with the following entities:

 

Third-party vendors

 

Business partners

 

Affiliated Web sites

 

Companies within our corporate family

 

We also may share your information:

 

In response to subpoenas, court orders, or other legal process;  to establish or exercise our legal rights;  to defend against legal claims;  or as otherwise required by law.  In such cases we reserve the right to raise or waive any legal objection or right available to us …

 

REVIEWS, COMMENTS AND USE OF OTHER INTERACTIVE AREAS

 

… you are solely responsible for your use of such Interactive Areas and use them at your own risk.  By using any Interactive Areas, you expressly agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:

 

  1. Any message, data, information, text, music, sound, photos, graphics, code or any other material (“Content”) that is false, unlawful, misleading, libelous, defamatory … abusive … or otherwise objectionable; …

 

TripAdvisor takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is TripAdvisor liable for any mistakes, defamation, slander, libel, omissions, falsehoods … you may encounter.  As a provider of Interactive services, TripAdvisor is not liable for any statements, representations or Content provided by its users in any public forum, personal home page or other Interactive Area …

 

 

General

 

This Website is operated by a U.S. entity and this Agreement is governed by the laws of the State of Massachusetts, USA.  You hereby consent to the exclusive Jurisdiction and venue of courts in Massachusetts, USA and stipulate to the fairness and convenience of proceedings in such courts for all disputes arising out of or relating to the use of this Website.  You agree that all claims you may have against TripAdvisor arising from or relating to the Site must be heard and resolved in a court of competent subject matter jurisdiction located in the state of Massachusetts.  Use of this Website is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including, without limitation, this paragraph.  The foregoing shall not apply to the extent that applicable law in your country of residence requires application of another law and/or jurisdiction and this cannot be excluded by contract …”

 

 

The petition and answers

[7]        The petition sets out the petitioners’ intention to raise defamation proceedings against the authors of the reviews.  The prayer is in the following terms:

“MAY IT THEREFORE please your Lordships to appoint this petition to be intimated on the walls and served upon the persons named and designed in the schedule hereto in the manner therein set forth and to appoint any person claiming an interest herein to lodge answers hereto if so advised within twenty one days of intimation and service, and upon resuming consideration, with or without answers, after such further enquiry, if any, as to your Lordships shall seem proper, to make an order ordaining the respondents to disclose the names addresses and such other information as they have as to the identity of the person “edna b” London who posted a review on or around 1st March 2012 and “dreckit Manchester” who posted a review on or around 9th February 2012, and to decern, or to do further or otherwise in the premises as to your Lordships shall seem proper.”

 

Service was sought upon “TripAdvisor LLC 7 Soho Square, London W1D 3 QB”.

 

[8]        In their response to the petition, the respondents aver in Answer 1 inter alia:

“Explained and averred that the respondents are TripAdvisor LLC, a company incorporated under the law of the state of Massachusetts and having its principal place of business at 141 Needham Street, Newton, MA02464, United States of America.  The respondents have no place of business within the United Kingdom.  The address given in the schedule to the petition, namely 7 Soho Square, London, W1D 3QB is the registered office of TripAdvisor Limited, which is a subsidiary of the respondents.  Neither the respondents nor TripAdvisor Limited has any place of business in Scotland.  The information which the petitioners seek is not held in Scotland.  Separatim and in any event, the petitioners have registered with the respondents’ website as “Registered Owners” and, in doing so, expressly acknowledged and accepted the respondents’ Terms of Use.  The user name used by the petitioners in connection with their business, “Martin 551918”, was registered with the respondents’ website on 2 June 2011.  The registration process requires users to expressly accept TripAdvisor’s Terms of Use.  Those Terms of Use prorogate the exclusive jurisdiction of the courts of the state of Massachusetts in relation to “all disputes arising out of or relating to the use of this Website”.  Accordingly, for that reason also, this court does not have jurisdiction.  For the avoidance of doubt, the respondents expressly reserve the right to plead a substantive defence to the petition in the event of their plea to the jurisdiction being repelled.”

 

The respondents’ first plea-in-law is one of “No jurisdiction”.

 

 

The decision of the Lord Ordinary
[9]        The petition came before Temporary Judge Paul Arthurson QC.  Having heard submissions, he issued an opinion dated 6 February 2014.  For the reasons given in his opinion, he sustained the plea of no jurisdiction and refused the prayer of the petition, reserving all questions of expenses.  The petitioners reclaimed. 

 

Submissions for the petitioners
[10]      The 1972 Act:  Counsel submitted that the wording of section 1(1A) of the 1972 Act was wide and had an extraterritorial dimension.  The court where the action was “likely to be brought” (i.e. the Court of Session) was empowered to make the necessary order, and could do so no matter where the haver was situated.  Section 5(4) of the 1972 Act (extent) was of no consequence, as the power had been given only to the Court of Session and the sheriff courts in Scotland:  arguably section 5(4) was otiose.  The damage had occurred in Scotland and the action of defamation would be raised in Scotland in the Court of Session.  The physical location of the server for the website was irrelevant (cf Gutnick v Dow-Jones [2002] HCA 56, 210 CLR 575;  Bonnier Media Limited v Smith 2003 SC 36). 

[11]      The extraterritorial reach of section 1(1A) was reflected in section 28 of the Civil Jurisdiction and Judgments Act 1982 and SI 1997/2780 paragraph 2.  Those provisions related to proceedings likely to be brought in countries other than Scotland, enabling someone from, say, Massachusetts raising an action in the USA to apply to the Court of Session or the sheriff courts in Scotland for an order under section 1(1) or (1A) (cf Union Carbide Corporation v BP Chemicals Ltd 1995 SC 398 at pages 401F to 403F). 

[12]      In practice, the Court of Session regularly pronounced orders for commissions to take evidence furth of Scotland, or to recover documents furth of Scotland.  The fact that the Scottish court orders were not, in themselves, enforceable in the foreign country did not preclude the court from making such orders.  There was no harm in the petitioners asking the court for an order under section 1(1A) where the court had the power to issue the order sought (cf the approach adopted by Lord Mance in Masri v Consolidated Contractors International (UK) Ltd (No 4) [2010] 1 AC 90 at pages 123H, 133 and 135).  In Baxter v Lothian Health Board 1976 SLT (Notes) 37, Lord Dunpark was willing to grant an interlocutor for recovery of documents from two hospitals situated in England, observing:

“ … in calls 2 and 3 the havers are in England where my writ does not run;  nevertheless they may produce the documents voluntarily if I grant the motion in toto …”

 

[13]      In the present case, if a Scottish interlocutor were to be granted and the respondents refused to assist, the next stage would be to consider what could be done elsewhere.  But it was possible that on receipt of the court’s interlocutor, the respondents might consider that an order from a respectable court was sufficient to meet their requirements, and might comply by giving the information sought, a fortiori as most litigation of an international nature was based on comity.  A fair reading of the parties’ agreement was that the respondents undertook to disclose information when asked to by a court, wherever situated, as a matter of comity.  (Thus the respondents would be absolved from any claim arising from confidentiality or data protection issues.)  While the Scottish court’s order “ordained” the respondents to give the necessary information, the phrase “if so advised” was implied.  In any event, the request for information was not an onerous one.  It was less onerous than a call to produce documents, or to give evidence on commission.  It had to be borne in mind that if the Lord Ordinary was correct in his view, a sheriff would be unable to order information or recovery of documents from someone in another sheriffdom.

[14]      The respondents’ terms and conditions:  On a proper construction of the terms and conditions, the clause prorogating the jurisdiction of the Massachusetts courts related solely to claims against the respondents, for example, for breach of contract.  But the present application was not such a claim:  rather it was a request for information, an ancillary type of order, with a view to a claim against third parties.  Accordingly the jurisdiction clause did not apply (cf Fiona Trust and Holding Corporation v Privalov [2007] Bus LR 1719 paragraphs 13, 25).  Esto the Lord Ordinary did not agree with that submission, he should have treated the agreement as ambiguous and applied the contra proferentem rule of construction in favour of the petitioners (Gloag, Contract (2nd ed) page 401).

 

Submissions for the respondents
[15]      The 1972 Act:  In terms of section 5(4), the 1972 Act applied to Scotland.  The Court of Session and the sheriff courts had been given a power extending to the whole of Scotland:  thus there would be no difficulty if a sheriff made an order under the Act relating to another sheriffdom.  The decision in Masri illustrated that in a litigation involving the public interest, a court might be persuaded to attempt to summon witnesses who were outside the jurisdiction:  but not in a private civil litigation.  As for recovery of documents, while witnesses in England could, since The Evidence by Commission Act 1859, be compelled by a Scottish court to give evidence on commission in Scotland, that did not extend to recovery of documents (Burchard v Macfarlane [1891] 2 QB 241).  The 1972 Act did not alter the clear and settled law concerning the recovery of documents or information.  The letters of request procedure would be pointless if the law was as stated by the petitioners.

[16]      The respondents’ terms and conditions:  The present application under section 1(1A) was a dispute, as the respondents were not prepared to divulge the information requested.  The application was a claim “against TripAdvisor arising from or relating to the Site”.  The term relating to disclosing information in compliance with a court order simply warned the client that the respondents might, under the compulsion of a valid and enforceable court order, have to share the information given to them by the client:  that was not an undertaking either to submit to the jurisdiction of a foreign court, or to share information without such compulsion.  Finally, there was no valid argument based on the principle of construction contra proferentem.

[17]      The reclaiming motion should be refused.

 

Discussion

Section 1(1A) of the 1972 Act
[18]      We agree with counsel for the petitioners that comity underlies much of the co‑operation which takes place in international litigations involving different jurisdictions, such as cases of international child abduction, extradition, and the execution of European arrest warrants.  In those cases, one jurisdiction accommodates or enforces requests and orders from another jurisdiction.  But it is a comity between states, not individual litigants, effected by international agreements, treaties, and conventions, and often followed by domestic legislation.

[19]      In the present case, we consider that the appropriate convention is the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 18 March 1970 (Cmnd 6727 1977).  Thus any application seeking an order ordaining a witness in Massachusetts to give information about the identity of certain persons with a view to litigation could, in our opinion, be made by letters of request to the relevant authority in Massachusetts:  rule of court 35.15 and the commentary in the Parliament House Book at pages C258 et seq.  Another procedural route open to the petitioners would be to instruct American attorneys in Massachusetts to act on their behalf to recover the relevant information by local American proceedings.

[20]      Counsel for the petitioners submitted that the Court of Session nevertheless had the power to grant the order sought, and that the Lord Ordinary had erred in refusing the prayer of the petition, for all the reasons noted in paragraphs [10] to [14] above.  We are unable to accept that submission.  First, section 1(1A) does not extend beyond Scotland:  the Scottish courts do not have jurisdiction over the respondents, who are a company incorporated under the law of the state of Massachusetts, and have their principal place of business at 141 Needham Street, Newton, MA 02464, United States of America (cf Bennion, Statutory Interpretation (4th ed 2002) page 282 section 106).  The analysis of English legislation and the Civil Procedure Rules in Masri v Consolidated Contractors Int (UK) Ltd (No 4) [2016] 1AC 90 (a case concerning the officer of a company against which a judgment had been given within the jurisdiction, and the issue of private rights following upon that judgment) does not, in our opinion, assist the petitioners in the circumstances of the present case.  Nor do we consider that section 28 of the Civil Jurisdiction and Judgments Act 1982, SI 1997/2780 paragraph 2, or Union Carbide Corporation v BP Chemicals Ltd 1995 SC 398, advance matters for the petitioners, concerning as they do litigants in proceedings in countries other than Scotland seeking the assistance of the Court of Session under the 1972 Act as extended by section 28.

[21]      Secondly, the interlocutor of the Court of Session “ordaining” a person or company to give information must be obeyed, on pain of certain repercussions including contempt of court, fines, and imprisonment.  Words such as “if so advised” cannot, in our view, be read into the interlocutor. Connected with that issue is the third reason, namely, that the Court of Session does not in general issue interlocutors couched in mandatory terms in the expectation that they might not be obeyed.  We note the approach adopted by Lord Dunpark in Baxter v Lothian Health Board 1976 SLT (Notes) 37.  However in that case the Lord Ordinary had no reason to believe that the two hospitals would be unwilling to comply with what was, in effect, a request from a court.  That is not the case here (and see also paragraph [24] below).  We also accept that there is a practice in the Court of Session of pronouncing, in certain circumstances, interlocutors for commissions to take evidence furth of Scotland, and for recovery of documents furth of Scotland.  But as the commentator on the Rules of the Court of Session points out in relation to rule 35.11 (commissions for examination of witnesses) at page C253 of the Parliament House Book:

(1) Witness resident beyond the jurisdiction of the court

A commission may be granted and executed where the foreign country does not object and the witness is willing.  Where either is not the case, an application will have to be made by minute for a letter of request:  see r. 35.15 … [emphasis added]”

 

In the present case, concerning as it does an order relating to information in terms of section 1(1A) of the 1972 Act, we must assume from the respondents’ opposition to the petition that they are not “willing” to divulge the information.  In such circumstances it is not, in our opinion, appropriate for the Court of Session to issue an interlocutor which is mandatory in its terms with sanctions attached, but which is not enforceable – a fortiori where there are alternative valid and effective procedural routes open to the petitioners.

[22]      We would add that we do not accept that a court order ordaining a party to disclose information is not onerous.  It may be that the information sought is highly confidential, or not widely known, and that its disclosure may have major repercussions, some possibly adverse to the holder of the information.

 

The respondents’ terms and conditions

[23]      We are not persuaded that the respondents’ terms and conditions contain ambiguities such that the petitioners are able to seek a construction contra proferentem (Gloag, Contract 2nd ed at pages 400-401).  The contractual terms quoted in paragraph [6] above are clear.

[24]      In particular, nothing in the respondents’ terms and conditions suggests that the respondents have undertaken to be bound by the orders issued by a Scottish court.  The condition commencing:

With whom we share your information

… We also may share your information … in response to subpoenas, court orders, or other legal process …”

 

is simply a warning to users of the website that the respondents may be obliged to disclose information about the users in response to a valid and enforceable court order.  That term does not subject the respondents to the jurisdiction of the Scottish courts or bind them to obey Scottish interlocutors.

[25]      Furthermore, the contractual term:

“You hereby consent to the exclusive Jurisdiction and venue of courts in Massachusetts, USA and stipulate to the fairness and convenience of proceedings in such courts for all disputes arising out of or relating to the use of this Website”

 

extends, in our view, to the current application for information.  In the petition, the petitioners ask the court to use its power to order disclosure of the identity of two users of the website who, it is averred, posted defamatory matter about the petitioners and their guest house.  The respondents oppose the petition and have not divulged the information sought.  That constitutes in our opinion a “[dispute] arising out of or relating to the use of [the] Website”, and accordingly the clause prorogating the jurisdiction of the Massachusetts courts applies.

 

Decision

[26]      For the reasons given above, we agree with the Lord Ordinary’s disposal of the petition.  We refuse the reclaiming motion.  In relation to expenses, counsel were agreed that in the event that the petitioners were unsuccessful in their reclaiming motion, they should be liable for expenses from the date when the respondents’ answers were lodged, up to and including the hearing of the reclaiming motion on 7 November 2014.  Counsel also agreed that expenses should be awarded without the necessity of a hearing.  We shall therefore find the petitioners liable to the respondents in the expenses of process from the date when the respondents’ answers were lodged, up to and including the hearing of the reclaiming motion on 7 November 2014.