30
Oct
20
Articles, Travel & Cross Border Claims
Jurisdiction and the Forum (Non) Conveniens Enquiry

Readers will already be mindful of the fact that the expiry of the Brexit transition period will (as things presently stand) trigger a seismic shift in the jurisdictional rules applicable to legal proceedings in England and Wales. The corollary of these changes seems to be that our common law rules on jurisdiction, as expressed in the CPR, will assume much greater importance in the coming months, certainly in the absence of any overarching jurisdictional agreement between the UK and the EU. In this article, I have attempted to clarify these rules and how they will apply in the context of foreign negligence claims, with particular focus being placed on the forum (non) conveniens enquiry. ​

 

The starting point

Presently, where the defendant is domiciled outside the EU or EEA, jurisdiction is established through valid service of process or submission to the jurisdiction by the defendant. If such a defendant does not submit to the jurisdiction, the first step in effecting valid service of process is for the claimant to apply for permission to serve the Claim Form outside the jurisdiction pursuant to CPR 6.36 and 6.37. Under those rules, the court may permit service on a Defendant outside the jurisdiction where:

a) There is a ‘good arguable’ case that one of the jurisdictional gateways in CPR PD 6B para 3.1 is satisfied;

b) There is a serious issue to be tried between the parties; and

c) The English court is the proper and appropriate place (forum conveniens) to bring the claim.

If any of those criteria are not met, the court will decline to allow the service of process on the foreign defendant and thus decline to exercise its jurisdiction. Applications to serve a claim form outside the jurisdiction under CPR 6.36 are for obvious reasons often made without notice. As a result, where the without notice application is granted, defendants are afforded the opportunity to apply to set aside the order for permission under CPR Part 11.

The “tort gateway”

In foreign negligence claims, the applicable jurisdictional gateway will generally be CPR PD 6B para 3.1(9)(a).[1] Readers are reminded of the majority’s obiter comments on this provision in Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80: the damage envisaged by para 3.1(9)(a) should be interpreted as including a wider kind of damage than that which completes the cause of action and should include secondary damage suffered in England that flows from the primary damage sustained abroad: see for exp. Lady Hale at [52]-[55]. More recently, of course, the majority’s obiter comments in Brownlie were upheld by a majority in the Court of Appeal in FS Cairo (Nile Plaza) LLC v Brownlie [2020] EWCA Civ 996. At [53] McCombe LJ (with whom Underhill LJ agreed) held:

“…To my mind the distinction between “direct” and “indirect” damage is virtually meaningless in the present context when one is asking the proper question whether a claimant has suffered “significant damage” in the jurisdiction. Even in cases of economic loss, moreover, I can see no reason why the suffering of “significant damage” in this country might not amount to a proper “connecting factor” between this country and a foreign defendant, even if other such damage is suffered elsewhere, justifying the assumption of jurisdiction in a proper case. There is no need to import the legalistic niceties inherent in the concepts of direct and indirect damage…”

It is noted that permission to appeal to the Supreme Court in FS Cairo has been granted and that the hearing is being expedited. Until then, however, the position is that English nationals who are injured abroad but subsequently suffer some of their injuries (or consequential economic loss) at home are likely to meet the tort gateway at CPR PD 6B para 3.9(1)(a). Clearly this development is good news for claimants.  A word of warning, however – if the court considers that the claimant is engaged in “forum shopping” for an illegitimate benefit, a “robust” application of the forum conveniens requirement can be expected: see Lady Hale at [53] and Lord Wilson at [66]-[67] in Brownlie.

We would therefore anticipate that the main battleground in the coming years will be the second (“serious issue to be tried”) and third (forum (non) conveniens) legs of the enquiry at CPR 6.36 and 6.37. The analysis under the second leg will by definition be entirely case specific, so the remainder of this note will focus on the forum conveniens requirement.

Forum (non) conveniens

When analysing the law on the forum conveniens discretion, the necessary starting point is the House of Lords decision in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. In Spiliada the House of Lords expressed the “basic principle” as follows:

…a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e., in which the case may be tried more suitably for the interests of all the parties and the ends of justice…” (476).

In a CPR Part 11 hearing, if the foreign defendant is able to show that there is another available forum that is prima facie the appropriate forum for the trial of the action, the burden shifts to the claimant to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country: see Lord Templeman in Spiliada at 476. Notwithstanding that general structure, however, each party is expected to seek to establish the existence of certain matters which will assist it in persuading the court to exercise its discretion in its favour.

Before discussing some illustrative recent cases on the forum conveniens enquiry, it should be borne in mind that many of the relevant factors will be case-specific and that one-size-fits-all guidance is impracticable. Nevertheless, it is clear that some common denominators and trends can be teased out from the courts’ reasoning over the years. With this aim in mind, I have below analysed five (relatively) recent High Court decisions that explore this issue.[2]

Case 1: Harty v Sabre International Security Limited & Anor [2011] 4 WLUK 65

This case is a useful illustration of the two-stage approach that the courts will often take when analysing the issue of forum (non) conveniens in a CPR Part 11 application hearing:

1) can the Defendant “not only demonstrate that England is not the appropriate forum, but also establish that another identified jurisdiction is clearly and distinctly more appropriate”?

2) If so, can the Claimant show that there are nonetheless special circumstances that exist by reason of which the trial should nevertheless take place in England and Wales? (see [11.1] and [11.2])

The additional insight provided by Harty is that it is an example of a case where one critical “special circumstance” was effectively determinative of the forum conveniens dispute.

The claimant in Harty was a security consultant working in Iraq.  Whilst in a three-vehicle security convoy pursuant to a contract with D1, the vehicle the claimant was in crashed and he suffered serious injury. The claimant returned to England to convalesce, despite being of Irish nationality, and wished to sue the defendants in England. The complicating factor was that the parties disagreed as to whether D1 or D2 (sister companies) should be sued. Crucially, D1 had immunity from suit in Iraq by virtue of being registered outside the country, whereas D2 (an Iraqi company) did not. At an earlier application hearing, the claimant was granted permission to serve outside the jurisdiction on both D1 and D2 pursuant to CPR 6.36 and 6.37. D1 and D2 sought to challenge jurisdiction under CPR Part 11, contending that any claim must be brought in Iraq. The parties agreed that the tort gateway at CPR PD 6B para 3.1(9)(a) had been met and Macduff J found early on in the judgement that the claim had reasonable prospects of success, so the central issue was whether England was the appropriate forum for trial.

As for the first leg of the enquiry, the submissions and findings were as follows:

  • Basic connecting factors. (1) The defendants’ submissions were that the alleged tort was committed in Iraq at a time when all parties were resident and working there; the contract of service had been made in Iraq; and the contract specified that the courts of Iraq should determine any dispute between the parties: [11.2]. There were other factors that Macduff J did not list. (2) The claimant seemingly did not dispute the fact that – all else being equal – Iraq was the appropriate forum and instead relied on the existence of “special circumstances” justifying the trial in England and Wales (see below). (3) Macduff J considered that these factors were sufficient to establish that Iraq was prima facie the appropriate forum to bring the claim: [11.2]. (4) In passing, Macduff J noted that the fact the Claimant was previously resident in England and had returned there to convalesce would have been “of relevance if there was a genuine dispute upon an issue of “forum conveniens at Spiliada stage one”: [11.2].

As for the second leg of the enquiry, the submissions and findings were as follows:

  • Special circumstances. (1) The key issue, on Macduff J’s analysis, was whether D1 or D2 was responsible for the accident. If D2 was the appropriate party, as the defendants submitted, there was nothing to stop the claimant suing D2 in Iraq. But if D1 was the appropriate party, as the claimant submitted, the claimant would be unable to bring a claim in Iraq due to D1’s immunity from suit. If in that circumstance Iraq was found to be the more appropriate forum, the claimant would clearly suffer major injustice. (2) Much of the hearing centred on the evidence regarding which party was the appropriate defendant and whether D1 had immunity from suit. (3) Macduff J found for the claimant on these factual issues – the claimant was at all material times working for D1; D1 was responsible for supervising and organising the ill-fated convey; D1 had immunity from suit in Iraq; and the claimant would thus be precluded from claiming against D1 in Iraq: see [8.1].

On the basis of those ‘special circumstances’, Macduff J found that England was the proper and appropriate forum for the trial and the defendants’ Part 11 application was dismissed.

Case 2: Stylianou v Masatomo Toyoshima & Suncorp Metway Insurance Ltd [2013] 7 WLUK 740

In contrast to Harty, the decision in Stylianou is a good example of a case involving a large number of complicating factors. The case is additionally useful because it gives a sense of how a court might approach a scenario where proceedings have already been issued in the courts of the alternative forum.

The claimant in Stylianou was an English national who suffered life changing injuries following a road traffic accident in Western Australia. After spending a little over two months in an Australian hospital, she was repatriated to England, where she was resident. The central complicating factor in Stylianou was that proceedings were originally issued in Australia and had reached an advanced stage by the time the claimant applied to have the claim heard in England.

Around a year and a half after the Australian proceedings had started, the claimant made an application under CPR 6.36 and 6.37 to serve the first defendant at the second defendant’s Brisbane address. It seems that the claimant (on the assumption that either English law would apply or if not that the discount rate was a procedural matter and would thus be dealt with under English law) wanted to benefit from the lower discount rate in England: see [5]. Master Fontaine granted the application. The second defendant subsequently applied to set aside the order and strike the claim out for abuse of process. In particular, the second defendant submitted that a) the tort gateway at CPR PD 6B para 3.1(9)(a) had not been met and b) at any rate, England was not the proper forum in which to bring the claim. It was submitted that the applicable law was Western Australian law and that the proper place to bring the claim was in Western Australia. It was also argued that the claimant had failed to comply with its disclosure obligations in respect of the Australian proceedings, as Master Fontaine was not alerted to a) the fact the proceedings were still underway and b) that a schedule of damages and counter schedule had already been served.

Starting with the tort gateway, Sir Robert Nelson (sitting as a Judge of the High Court) found that “damage” referred to in CPR PD 6B para 3.1(9)(a) included consequential damage suffered in England and that the claimant clearly met this requirement. Though ultimately outside the scope of this particular note, the reasoning on this point is lengthy and illuminating. I would direct readers to [43]-[46], [49] and [53]. After determining that the tort gateway was met, Sir Robert Nelson then found that England was in fact the appropriate forum.

As for the basic connecting factors, the key points were as follows:

  • Basic connecting factors. (1) The accident occurred in Western Australia and the motorist (a Japanese national normally resident in Japan) was insured by Suncorp in Queensland and the insurance policy was governed by the law of Western Australia. (2) On the other hand, virtually all of the loss had arisen, and would continue to arise, in England where the claimant was repatriated seven weeks after the accident. The claimant would continue to live in England for the remainder of her life. (see [99]).

Unlike in Harty, however, a wider range of complicating factors were in play. The central points that were considered in addition to the basic connecting factors were as follows:

  • Obtaining justice in Australia. (1) The claimant accepted she would receive substantial justice in Australia. (2) However, the claimant would also receive higher damages in England if the case were to be tried there, largely because of the difference in discount rates between English and Western Australian: [100].
  • Logistics of the trial and impacts on justice. (1) The trial, wherever it took place, would require 12-plus expert witnesses, all from England: [102]. (2) A trial in Australia would require evidence by video link and there is an eight hour time difference between England and Western Australia. This combined with the claimant’s disabilities would, Sir Robert Nelson found, make it difficult to obtain instruction from the claimant during trial: [101]. (3) The key factor was that quantum was the central issue and that i) the claimant could not travel to Australia to participate in the hearing and ii) the time-zone combined with the claimant’s disability would make it difficult to actively involve her in the claim: [111]. (4) The fact all the medical evidence and documentation on the sole issue, quantum, was one England was “also an important factor”: [112].
  • Possibility of electronic evidence. The second defendant sought to rebut these points by suggesting evidence could be heard electronically. In response, Sir Robert Nelson found that “electronic evidence or taking of evidence by examiner or on commission would [not] be an adequate substitute or solve the inherent problems involved in a claimant being unable to be at trial”: [112].
  • Parallel proceedings. (1) The fact the Claimant had actively pursued a claim in Western Australia for nearly two and a half years was “clearly an important factor in the balance”: [113]. Interim payments (AUS$70,000) had been made, costs (AUS$60,000) had been incurred by the second defendant, and a Costs Protective Order had been made. (2) However, Sir Robert Nelson considered the claimant had been in a vulnerable state at the time the Western Australian proceedings were commenced; that there was uncertainty as to the effect of Rome II on the bringing of proceedings in England at the relevant time; and the claimant was advised that Australian proceedings would be a clear route to achieving what she desperately needed, namely an interim payment: [113]. (3) Sir Robert Nelson was also satisfied that the issue of costs on the withdrawal of the Australian proceedings could be dealt with by suitable undertakings. As the applicable law was Australian law, the Costs Protective Offer could also be considered by the court: [114].

It seems that the key factors were the logistical issues that would result if the claim was heard in Australia, and the impact those issues would have on the claimant obtaining a just outcome. Sir Robert Nelson considered it was critical to ensure the claimant could be actively involved in the quantum hearing and found that this would best be achieved in England. As for the parallel proceedings, the active steps taken by the claimant’s advisors to mitigate the issues caused by this factor were well received by Sir Robert Nelson. This general strategy of lessening the burdens faced by foreign defendants through appropriate (and cost-effective) undertakings should always be kept in mind.

Case 3: Pike v Indian Hotels Co Ltd [2013] 12 WLUK 744

The claim in Pike arose from the terrorist attack which took place in Mumbai on 26th November 2008. The claimants were British guests at the defendant hotel. The first claimant was catastrophically injured whilst trying to escape the besieged hotel via the window in his hotel room. The second claimant suffered psychiatric injury as a result of the experience. Both claimants alleged the hotel had negligently failed (despite having been warned of an impending attack) to institute appropriate and effective security measures to prevent terrorists from entering the hotel.

The case concerned the defendant’s application to set aside Master Fontaine’s order for permission to serve the defendant outside the jurisdiction. The defendant conceded that the claimants had a good arguable case, so the relevant question was whether the claimants fell within the tort gateway at CPR PD 6B para 3.1(9)(a) and whether England was the proper place in which to bring the claim. On the first issue, Stewart J found that the indirect or secondary damage suffered by the claimants in England satisfied the tort gateway: [9] to [19].

On the issue of forum (non) conveniens, the claimants conceded that the “natural forum” was plainly India, given that this is where the injury occurred, but they sought to argue that there were special circumstances by reason of which England was the proper and appropriate forum. In assessing this question, Stewart J considered the following factors:

  • Applicable law. (1) The applicable law was plainly Indian law: [36]. The defendant sought to argue that the alleged breach of duty would need to be tested against local Indian standards, which would be difficult if the claim was heard in England. (2) Stewart J regarded this factor as having “some, but not a very strong, significance” – “English courts are”, he reasoned, “well used to determining such cases”: [36](i). (3) A further issue arose from the fact that there was not much Indian authority on the legal point in question (personal injury litigation was not a fixture in the Mumbai High Court) and there was therefore “some risk that an English court will be required to determine what the law of India would be to cover the Claimants’ claim”. (4) Stewart J took this factor into account but did “not give it a great deal of weight”: [36](ii).
  • Location of witnesses. (1) It would be difficult for the first claimant to travel to India: [38]. (2) On the other hand, the majority of the defendant’s witnesses would be Indian residents and many would require visas to come to England: [39]. (3) Stewart J found the defendant would suffer less prejudice because “(a) the central witnesses would be able to travel and/or (b) the main witnesses could give evidence by video link and/or (c) a number of witnesses are likely to be agreed or their evidence will be relatively uncontroversial and able to be taken on commission”: [39]. A further point in favour of the defendants was that many of their witnesses would require translator, though this was “not a matter of great weight”: [39].
  • Delay in the Bombay High Court. (1) This was the major contention between the parties and both parties obtained evidence on this point. (2) The claimants’ expert suggested it would take 15 years to reach a first instance trial in the Bombay High Court: [45]. Though there had been some recent reforms, it was suggested that previous reforms had achieved little in terms of reducing the delays: [46]. (3) The defendant’s legal expert suggested it would take 4 years: [47]. (4) Stewart J preferred the claimant’s expert evidence and concluded that “the probabilities are that the estimate of 15 years to reach a first instance civil trial in the Bombay High Court remains still the probable best estimate”: [50]. (5) The defendant sought to counter the point by offering to expedite the trial, though Stewart J was not convinced this “would have a significant effect on the timetable of a case in Mumbai”: [42] and [54]. There was also the likelihood of an appeal if the claimant won at trial, which would exacerbate the delay: [58]. (6) Taking all of this together, the overall delays that the claimants would face in India were found to amount to some 20 years: [58].
  • Delay in England. (1) Stewart J considered that in England there would be a split trial within 2 to 3 years. The court would then have the power, if the claimant succeeded, to award substantial interim payments pending the hearing of quantum issues. (2) The fact the claimant could receive such payments within 2 to 3 years in England as opposed to 15 – 20 years in India “was a very significant factor” in Stewart J’s judgment: [60].
  • Availability of litigation funding of their claims to judgment in India. (1) The claimants asserted they could not find their case in India and the Indian experts agreed that public funding, conditional and contingency fee arrangements are absent in India and there is no funding available for the costs of experts in India: [64]. (2) By contrast, the claimants in England had the benefit of conditional fee arrangements and after the event insurance. The costs of litigating in India were estimated at £200,000 and £300,000 and the claimants would also be required to travel to and from India: [66]. (3) Unfortunately, there was little evidence of the claimants’ means before the court. (4) However, Stewart J considered he had to do what he could on the evidence before him and found that the claimants would not be able to find finance the claims in India: [68]. No evidence was provided to support the possibility of any Third-Party funding of Indian proceedings, so Stewart J regarded the possibility as “wholly speculative”: [68].
  • Authorities on the relevance of this factor. Stewart J briefly considered Connelly v RTZ Corporation Plc [1998] AC 854 and Lubbe v Cape Plc [2000] 1 WLR 1545 and concluded that the availability of funding was a factor that was relevant to the question of whether the clamant can show that substantial justice will not be done in the “natural forum”.

Taking all of the above together, Stewart J found that the England was the appropriate forum for the trial of the claimants’ action. The delay that the claimants would face in India was regarded as being sufficient on its own to discharge the claimant’s burden of proof: [71]. But the lack of funding in India was a further factor that militated in favour of the claim being heard in England.

Case 4: Peacock v Del Seatek India Private Ltd & Hyundia Heavy Industries Company Ltd [2019] 10 WLUK 810

The claimant in Peacock was a UK national domiciled in England who was employed as a commercial diver by the first defendant (D1), a company incorporated in India. In the course of his employment with D1, the claimant was staying on board a vessel owned and operated by the second defendant (D2), a company registered in South Korea. The vessel was located off-shore in the Paradip area of India. Unfortunately, the claimant suffered serious injuries during a dive and subsequently brought a claim for damages against D1 and D2.

At an earlier point in the dispute, the claimant was granted permission to serve the claim form outside the jurisdiction on D1 and D2 in India and South Korea, respectively. The procedural history thereafter is fairly complicated but for the purposes of this note it suffices to say that an order for judgment in default was ordered against D1, but not D2, and that D2 sought to challenge the jurisdiction of the English court and set aside service pursuant to CPR Part 11. D2 also confirmed that it would, if necessary, submit to the jurisdiction of the Indian court. There was a further application by D2 that the claimant should not have been granted an extension of time for the service of the Claim Form, though this is not addressed in this note.

Registrar Kay QC found (in line with the obiter comments of the majority in Brownlie) that the tort gateway had been met as the claimant had returned to England and clearly suffered some damage there.  He also found that the claimant had a reasonable prospect of succeeding in its claim against D2. The bigger issue in Peacock was the question of whether England was the appropriate and proper forum for the hearing of the claim.

D2 advanced the following reasons for why India was the appropriate forum: a) the tort occurred in India, so India was prima facie the appropriate forum for trial; b) the damage that gave rise to the cause of the action (the crushing injury) was sustained in India; c) the claimant was injured in the course of his employment with D1, an Indian company; d) the claimant underwent his initial treatment in India; e) the claim against D2 is governed by Indian law and “it is preferable that an Indian court apply Indian law”; f) the witnesses with local knowledge of the site and weather conditions were based in India; g) the piles on which the Claimant worked are still in place off the coast of India; h) the factors connecting the claim to India were overwhelming: see summary at [27]. Anticipating some of the claimant’s arguments, D2 also emphasized that there was no risk of irreconcilable judgements, default judgment having been entered against Seatek, which effectively drew those proceedings to a close.

In response, the claimant relied on the following: two key liability witnesses (the claimant and his brother) were and remained in England; the relevant barge was at the time of the trial in the water of the UAE; the only liability witnesses specifically identified by D2’s solicitor was no longer in India but South Korea; the vast majority of the claimant’s medical treatment was in England and nearly all of his losses will have been sustained there; the quantum witnesses are in England; the case as to quantum against D1 would be proceeding in England in any event and there was likely to be factual evidence as to liability which has a bearing on quantum issues.

Having considered these submissions, Registrar Kay QC found that England was the more appropriate forum. The relevant factors that led to the decision can be summarised as follows:

  • Location of the liability witnesses. (1) The claimant and his brother, two key liability witnesses, were based in England. The only known liability witness for D2 had (it seemed from the evidence) moved to South Korea. (2) The accident was caused during a diving operation, so expert evidence on diving practice was likely to be at the heart of the liability trial. Registrar Kay QC accepted the claimant’s submission that such evidence was more likely to be available in England: [32]. (3) Insofar as witnesses would need to be called as to the practice onboard the relevant vessel, such witnesses would be connected to the vessel itself rather than India. The vessel had moved on from India and at the time of the hearing was near the UAE. (4) Taking the above points into consideration, Registrar Kay QC noted: “the reality is that the incident occurred in an offshore operation which appears to have little direct connection with India except that the Claimant’s immediate employers were Indian.” [32]. (see [32]).
  • The fact judgment had been obtained in default against D1. (1) Jurisdiction against D1 had already been established. The fact there would be an assessment of damages hearing before the English Court in relation to D1 supported the proposition that “there is already a strong connection with the English jurisdiction” [33]. (2) Moreover, “with respect to that assessment, aside from his initial hospitalisation, the relevant expert medical witnesses who are or will be able to assess the Claimant’s condition and prognosis are all in England. In my view it would be absurd to suggest that there should be two separate hearings on quantum”: [33].
  • Applicable law. D2 submitted that Indian law applied and that the Indian courts would be better suited to apply their own law, but Registrar Kay QC considered that the “English courts are well used to dealing with matters relating to foreign law and it is open to either side to place evidence of such law before an English court”.
  • D2’s alleged attempts at seeking a “juridical advantage”. Registrar Kay QC noted that D2 was a South Korean company and had “no connection with India other than it was operating in India at the relevant time”: [34]. Given this limited connection, Registrar Kay QC considered it was suspicious that D2 offered to submit to the India jurisdiction but failed to clarify whether it would be seeking to rely on the Indian law relating to limitation: [34]. In sum, “no explanation was provided as to why [D2] was prepared to submit to the jurisdiction of the Indian court rather than the English court and there is, in those circumstances, an inference that [D2] is seeking to gain a juridical advantage by opposing jurisdiction in the present proceedings”: [34].

Taking all of the above into consideration, Registrar Kay QC found that “England is by far the better and therefore the proper forum for hearing the claim against the Second Defendant.” It is noted that permission to appeal to the Admiralty Judge has been granted in Peacock, though not on the forum conveniens issue. However, it is understood that there is a further application for permission to appeal being made in respect of this aspect of the decision.

Case 5: Traxys Europe SA v Sodexmines Nigeria Limited & Basem El Ali [2020] EWHC 2195 (Comm)

The issue of forum (non) conveniens was more recently considered by the Commercial Court in Traxys. The decision is especially useful for present purposes as Teare J analyses a range of ‘relevant factors’ that have not yet been addressed in this note. In addition, the judgment contains a helpful re-clarification of the burden of proof analysis in Spiliada, particularly as it relates to scenarios where the foreign defendant seeks a stay of English proceedings in order for a parallel claim to be heard in an alternative forum.

The underlying claim in Traxys arose from the alleged dishonest substitution by D1 of a virtually worthless product in place of a valuable tin product which D1 had agreed to sell to the Claimant. D2, Mr Ali, was the beneficial owner and alter ego of D1. The alleged dishonest substitution occurred in Nigeria. The Claimant sought damages and/or restitution from D1 for failure to deliver the cargo as required under the contract of sale. The Claimant also alleged deceit and unlawful means conspiracy against both D1 and D2. The contract between the Claimant and D1 provided for English law and jurisdiction. Permission to serve D2 out of the jurisdiction was granted on the basis that D2 was a necessary and proper party to the claim against D1 and that England was the proper place to bring the claim. D2 did not challenge the grant of that permission. However, D2 sought a stay of the proceedings against D1 on the basis that Nigeria was the forum conveniens of the claim against him.

A preliminary issue arose as to which party had the burden of proof. The Claimant alleged that since D2 sought the stay, D2 had the burden of establishing that Nigeria was the more appropriate forum for the trial. By contrast, D2 alleged that since this was a case where the Claimant was not entitled to serve D2 out of the jurisdiction without leave of the court, the Claimant had the burden of showing that England was the appropriate forum: [7]. Teare J noted it was unclear why D2 had framed the application as one to stay the exercise of the court’s jurisdiction rather than an application to set aside the order for service: [10]. If D2 had applied to set aside the order for service out of the jurisdiction on the grounds that England is not the proper forum, D2 would have incurred the burden of proving that submission and the matter would have been straightforward: [10]. Teare J’s analysis on this preliminary issue can be summarised as follows:

  • Burden of proof. (1) There are two groups of case – the first group are those where the claimant is entitled to commence proceedings in England; the second group are those where the claimant is not entitled to serve out of the jurisdiction and must persuade the court to exercise the discretion in its favour. In the former the burden lies on the defendant to show another forum is more appropriate, but in the latter the burden lies on the claimant to show to show another forum is more appropriate: [11]. (2) Teare J considered the present case fell within the “second” group of cases. Although it was true that as a “matter of form” D2 did not challenge the decision of the court to permit service out of the jurisdiction, it “does not follow that this is a case where the Claimant was entitled to commence proceedings against [D2] in this country.” Looking at the “substance of the matter”, Teare J found that “once battle lines were drawn as to whether England was the forum conveniens the burden lay on the Claimant to establish the England was the forum conveniens”: [11].

In terms of the forum (non) conveniens enquiry, the following factors were considered:

  • Basic connecting factors. (1) The cause of action against D2 was in tort and the location where the tort occurred was plainly an important factor: [12]. The tort occurred in Nigeria and this was the relevant starting point: [20]. Teare J noted Lord Mance’s judgment in VTB Capital v Nutritek International [2013] 2 AC 337, where it was found that “the place of commission will normally establish a prima facie basis for treating that place as the appropriate jurisdiction”, but that the significance of the place of commission “may be dwarfed by other countervailing factors”: Lord Mance at [51]. Finally, D2 was a British citizen but he had never lived in England, so this had limited weight: [34].
  • Location of witnesses. (1) The witnesses relied on by the Claimant were likely to be in Nigeria: [21]. Four key witnesses were identified, all of whom based in Nigeria, and this was deemed a “strong connecting factor”: [21]. (2) D2 alleged that justice required the cross-examination of these witnesses and that this “could only be achieved” if the case against D2 was heard in Nigeria as those witnesses were compellable in Nigeria but not in England: [22]. Teare J did not find that the witnesses would be unwilling to give evidence in England, largely because they had provided statements to the police and had shown themselves to be willing to contribute to the proceedings: [22]. Teare J also noted the evidence could feasibly be heard by video-link: [22]. Nevertheless, Teare J concluded by affirming that the presence of the witnesses in Nigeria was a strong connecting factor.
  • Location of D2. D2 was resident in Beirut, not Nigeria. But D2 was unlikely to travel anywhere due to him being a person of interest to both Interpol and the Nigerian police. Accordingly, it was most probable that D2 would give evidence by video-link and his “participation as a witness” was deemed “’neutral’ as between England and Nigeria”: [23].
  • Court facilities and ensuring substantial justice. (1) The Claimant relied upon evidence that the courts in Nigeria were shut due to covid-19 and that the “data connections were overloaded”, whereas the facilities in the Rolls Building were good. (2) But the evidence on this issue was weak. Accordingly, Teare J considered that “the state of the evidence” prevented him from saying whether “the ends of justice will be better served if [D2] gives his evidence by video link to the Rolls Building than to the court in Nigeria.” [24].
  • Applicable law. (1) Applicable law was a ‘neutral factor’ – there was a dispute about the applicable law and, in any event, no material differences between Nigerian and English law had been identified: [26]. (2) A slightly separate point was taken by the Claimant that D1 had agreed to English law and jurisdiction; that D2 was the alter-ego of D1; and that D2 therefore had a substantial connection to England as a result. Although this established “a connection of sorts” between D2 and England, Teare J did not consider this could be “taken too far”: [31]. D1 and D2 were legally separate and distinct persons and D2 had not agreed to English law and jurisdiction.
  • Parallel proceedings and inconsistent judgements. (1) The tort claims were brought against D1 and D2. Thus, if the claim against D1 was stayed in favour of Nigeria, there might be inconsistent judgments in England and Nigeria: [13]. On this point, Teare J cited Lord Briggs judgment in Vedanta Resources Plc v Lungowe [2019] UKSC 20 – although in the past the prospect of irreconcilable judgment had been decisive (see, for example, Legatt J at [16] in OJSC VTB Bank v Parline Ltd [2013] EWHC (Comm)), the risk of irreconcilable judgments does not necessarily operate as a “trump card”: see [76]-[84].[3] (2) Looking at the actual likelihood of inconsistent judgements, the Claimant argued that, although there was no dispute as to D1’s liability in contract, both the contract and tort claims would be brought against D1 in England as certain heads of claim were excluded in contract but recoverable in tort: [32]. This, the Claimant submitted, clearly gave rise to the risk of inconsistent judgements. (3) However, D2 stated that it would not submit that the relevant heads of claim were irrecoverable in contract. Accordingly, Teare J considered it was unlikely that the claim in tort against D1 would go ahead in England: [32]. There was, therefore, no real risk of conflicting decisions on the tort liability.

In summary, Teare J found that the Claimant had failed to establish that England was the more appropriate forum – “there is in truth no particular connection with England save that England is the agreed jurisdiction for claims against” D1: [37]. At [38], Teare J concludes: “The events which have given rise to those claims (brought by the Claimant) took place (in the main) in Nigeria. The witnesses upon whom the Claimant will rely to establish their claim against Mr Ali are in Nigeria. In truth this is a Nigeria case, not an English case. The centre of gravity of the case is in Nigeria, not in England.” The stay sought by D2 was granted.

Discussion

The case law discussed above illustrates that the forum conveniens analysis will inevitably be highly fact sensitive. In Peacock, for example, the fact that judgement had already been obtained in default against D1 was an important factor, as was the fact that D2 (a South Korean company) was willing to submit to the Indian courts but had not stated it would not raise a limitation defence there. Similarly, the fact that the defendant in Harty had immunity from suit in Iraq, the natural forum, meant that England was the next best option. Put shortly, there are an infinite number of potentially determinative “special circumstances” that might arise on any particular set of facts.  Nevertheless, a few important themes and strategies can be extracted from the cases discussed above.

  1. The applicability of foreign law and its relevance to the forum (non) conveniens analysis

All else being equal, the fact that Country X’s law would apply to a claim is plainly a good reason for the claim to be heard in the courts of Country X, as national courts are better placed to apply their own law than foreign courts. However, the decisions above suggest that this factor may be attributed fairly limited significance in the wider context of a forum (non) conveniens dispute. Sir Robert Nelson’s judgment in Peacock and, even more so, Stewart J’s judgment in Pike are both examples of this. In both cases, the justification for attributing the applicability of foreign law limited weight was that the English courts are extremely adept at dealing with and applying foreign law. Rightly or wrongly, it seems this view is widely held. A further point to note is that if the differences between foreign law and English law are immaterial, the relevance of this factor will again be diminished: see, for example, [26] in Traxys.

  1. Taking tactical steps to smooth the pathway to trial in the preferred forum

Another interesting theme that emerges from the case law is that parties will often take steps to try and smooth the resisting party’s path to bringing proceedings in the forum of choice. In Pike, for example, the defendants anticipated that the claimant would raise a number of issues in regard to the trial in India, such as the existence of a limitation defence, the less generous costs rules, and the prospect of significant delay. In an attempt at lessening the significance of these factors, the defendant undertook to not raise any limitation defence in any proceedings brought in India; offered to pay the claimants’ reasonable costs (over and above that which would be allowed in India) if the proceedings were brought in India and the claim succeeded; and expressed a willingness to try and expedite proceedings in India. Although the first two undertakings were positively received, Stewart J considered that the delay in the Indian courts was the main source of injustice and that the defendants’ attempts to expedite proceedings would make minimal difference. Similar steps were taken by the claimant in Stylianou to address the issues arising from the fact proceedings had already been issued in Australia. All in all, it seems parties’ representatives would be well advised to consider whether any cost-effective steps can be taken to mitigate issues the other party might face in the event the trial is heard in the former’s preferred forum.

On the flip side, if a party stands to gain an illegitimate benefit by virtue of the claim being heard in a foreign court and fails to undertake to turn down that benefit, that could potentially hurt the party: see, for example, [34] in Peacock. Parties will therefore want to make sure that they undertake to not accept any illegitimate advantage they would obtain if the trial was heard in their forum of choice.

  1. Availability of litigation funding

The availability of litigation funding in the foreign jurisdiction only arose substantively in Pike, but the leading authority on this issue is Connelly v RTZ Corporation plc [1998] AC 584. In Connelly, the claimant was a Scottish national employed by a uranium mining company in Namibia. During the course of his employment, the claimant was exposed to silica and uranium, which (he alleged) caused cancer of the larynx. The claimant was impecunious and would not be able to obtain any sort of legal aid in Namibia to finance the litigation, whereas legal aid would be available to the claimant in England. On the relevance of this factor to the forum (non) conveniens analysis, Lord Goff held at 873E-H:

“I therefore start from the position that, at least as a general rule, the court will not refuse to grant a stay simply because the plaintiff has shown that no financial assistance, for example in the form of legal aid, will be available to him in the appropriate forum, whereas such financial assistance will be available to him in England…. I cannot think that the absence of legal aid in the appropriate jurisdiction would of itself justify the refusal of a stay on the ground of forum non conveniens….Even so, the availability of financial assistance in this country, coupled with its non-availability in the appropriate forum, may exceptionally be a relevant factor in this context. The question, however, remains whether the plaintiff can establish that substantial justice will not in the particular circumstances of the case be done if the plaintiff has to proceed in the appropriate forum where no financial assistance is available.” (my emphasis).

It was further held that the nature and complexity of the case was such that it could not be tried at all without the benefit of financial assistance – this was not a scenario where the claimant was seeking “to take advantage of financial assistance available here to obtain a Rolls Royce presentation of his case”. Accordingly, Lord Goff concluded that “substantial justice cannot be done in the appropriate forum (i.e., Namibia), but can be done in this jurisdiction where the resources are available.”

The fact England has more advanced litigation funding than other jurisdictions means this factor is likely to be relevant in particularly complicated or costly cases that are brought by impecunious claimants. Insofar as the absence of such funding abroad inhibits the claimants’ ability to obtain substantial justice in that forum, the availability of litigation funding in England may well amount to the decisive “special circumstance”.

Conclusion

It is hoped that this article has shed some light on some of the jurisdictional issues one might encounter in foreign ‘rest of the world’ claims; and, going forward, quite possibly in claims involving accidents taking place within the EU27. As for the exercise of judicial discretion in relation to applicable law, see the recent article by Matthew Chapman QC, a link to which can be found here.

 

[1] But note that if the claimant is suing on a contract then there may be circumstances where 3.1(6)(a) will be applicable. For example, if the contract is negotiated by email or telephone and the offer was accepted by the claimant when he/she was in England, it may be arguable that 3.1(6)(a) is applicable: see Entores Ltd v Miles Far East Corp [1955] 2 Q.B. 237.

[2] For an illuminating analysis of the Supreme Court’s decision in Vedanta Resources Plc v Lungowe [2019] UKSC 20, which also addresses the issue of forum (non) conveniens, readers are referred to Matthew Chapman QC’s article on the case here.

[3] Again, see Matthew Chapman QC’s article for a fuller analysis of the decision in Vedanta.

Written by or involving: Henk Soede

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