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Articles | Fri 30th Oct, 2020
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). Readers are reminded of the majority’s obiter comments on this provision in Four Seasons Holdings Incorporated v Brownlie  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 -. 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  EWCA Civ 996. At  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  and Lord Wilson at - 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  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.
Case 1: Harty v Sabre International Security Limited & Anor  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:
As for the second leg of the enquiry, the submissions and findings were as follows:
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  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 . 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 -,  and . 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:
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:
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  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:  to .
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:
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: . 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  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 . 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:
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  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: . 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: . 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: . Teare J’s analysis on this preliminary issue can be summarised as follows:
In terms of the forum (non) conveniens enquiry, the following factors were considered:
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: . At , 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.
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.
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,  in Traxys.
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,  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.
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  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”.
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.
 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  2 Q.B. 237.
 For an illuminating analysis of the Supreme Court’s decision in Vedanta Resources Plc v Lungowe  UKSC 20, which also addresses the issue of forum (non) conveniens, readers are referred to Matthew Chapman QC’s article on the case here.