The Dekagram 6th March 2023

Articles, News | Mon 6th Mar, 2023

Another week, another travel alert. Having advised Brits not to travel to Turkey to undergo cheap cosmetic surgery, the Foreign, Commonwealth and Development Office has issued an advisory warning of an outbreak of shigellosis in Cape Verde. Apparently travellers returning from the Santa Maria resort on Sal have been reporting confirmed cases of the infection since August 2022. Anecdotally, we were aware of the outbreak, but the fact that it has been ongoing since last Summer does seem rather alarmingly reminiscent of the issues with cyclospora suffered by the most popular Mexican resorts from 2016 onwards. No doubt the cases arising will be filtering through soon enough. In the meantime, we have one casenote on jurisdiction and another on the approach taken by the English and Welsh courts to foreign disclosure procedure – no doubt a growth area we should all be aware of.

The limits – or otherwise – of seeking disclosure in foreign courts

Handed down on 1 March 2023, Soriano v. Forensic News L.L.C. [2023] EWCA Civ 223 was an appeal decision in a defamation case which considered an issue with far wider application than the limits of that jurisdiction. The claimant sued the defendants, one company and one individual both based in the United States, for libel and, at a previous stage of the litigation, the English courts had been held to be the correct venue. The statements said to be libellous were serious and included allegations of homicide, corruption (including in connection with the Olympic Games in 2014 and, separately, in combination with a senior Israeli politician), money laundering, embezzlement, and interference with the U.S. presidential election in 2016.

Prior to a preliminary hearing in the English High Court, the defendants had applied to the District Court of the Southern District of New York for an order against a third party bank for production of documents concerning the claimant’s companies. They relied on 28 U.S.C. §1782, part of the U.S. federal code, which provided that “[t]he district court … may order [a person] to … produce a document or other thing for use in a proceeding in a foreign … tribunal”, and “[t]he order may be made … upon the application of any interested person”. The defendants, who relied inter alia on defences of truth and public interest, sought information about various financial transactions.

When the claimant discovered the U.S. application, he applied in England for an anti-suit injunction. That was dismissed at first instance, with Murray J. disagreeing with the claimant’s claim that the defendants’ conduct was “oppressive or vexatious or which [interfered] with the due process of the court”, with reference to South Carolina Insurance Co. v. Assurantie Maatschappij “De Zeven Provincien” N.V. [1987] 1 A.C. 24. The claimant appealed. He was granted permission but the appeal was ultimately dismissed by Sir Geoffrey Vos M.R. and Carr and Warby L.JJ.

The Court of Appeal considered and rejected five grounds of appeal.

The first, and most substantive, was that although there was longstanding authority weighing against permitting a libel defendant “to go roving through the whole of the [claimant]’s books to find out something if they can” (Yorkshire Provident Life Assurance Co v. Gilbert [1895] 2 Q.B. 148), the question for the judge had been a factual one – whether the U.S. application was unconscionable, abusive or vexatious – with which an appeal court would be slow to interfere. Yorkshire Provident was authority about disclosure in a libel action, not about evidence-gathering generally. The breadth of any U.S. order was a matter for the U.S. court, and English limitations on so-called ‘fishing expeditions’ related to the scope of disclosure in English libel law.

The Court of Appeal also considered and dismissed four other grounds, some of which overlapped the first. It rejected a contention that the description of the claimant by the defendants in the U.S. application as a “libel tourist” was sufficient in itself to merit an injunction, even where (by holding that England was the appropriate jurisdiction) the English court had implicitly disagreed. A further argument that it was abusive to expose the claimant to a costs liability in the U.S. court was also rejected.

Although the cause of action was in defamation, the court’s approach to the issues presented in this case has wider application. Parties seeking injunctions to restrain foreign proceedings for the purpose of gathering evidence must persuade the English courts on the factual circumstances of their individual cases; and reliance on domestic principles within a particular area of law may be insufficient for success. Contrarily, a party seeking evidence which is properly obtainable in a different jurisdiction will not automatically be prohibited from doing so where, in light of the issues, there is nothing unconscionable, abusive or vexatious or would tend to interfere with the proper conduct of the English proceedings.

About the Author

William Dean has a busy personal injury practice involving both domestic and foreign accidents. He is a contributor to the Butterworths Personal Injury Litigation Service, in which he is the author of the “Foreign Accidents” section. He also acts in tribunal claims against the Criminal Injuries Compensation Authority, including in cases involving foreign jurisdictions, and is a contributor to the leading textbook in that field.

Jurisdictional Challenges

How confident should parties be when serving outside the jurisdiction that the courts in England and Wales will accept jurisdiction?

When faced with an application to serve out, or a challenge to jurisdiction, the test to be applied by the courts is governed by three criteria, under which the claimant must establish: (i) a good arguable case that falls within at least one of the jurisdictional gateways in CPR 6BPD, para 3.1, (ii) that there is a serious issue to be tried on the merits, and (iii) that England and Wales is the appropriate forum for trial. The third of these conditions reflects the principle of forum conveniens.

Provision in CPR 6BPD para 3.1 (9) for service out relating specifically to claims in tort provides:

(9) A claim is made in tort where—

(a) damage was sustained, or will be sustained, within the jurisdiction;

(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction; or

(c) the claim is governed by the law of England and Wales.

Four Seasons Holidays Inc v Brownlie [2017] UKSC 80 provides that, when considering the Practice Direction’s jurisdictional gateway for tort claims, “damage” should be given its ordinary and natural meaning, covering all the detriment which the claimant has suffered as a result of the defendant’s tortious conduct. “Damage” referred to the actionable harm caused by the alleged wrongful act, and it included all the detriment (physical, financial and social) which the claimant had suffered as a result of the defendant’s tortious conduct. As to the consequences of giving “damage” a wide meaning, the discretion available to the court should be robust enough to prevent claimants from choosing where to bring a claim. The court would look for a substantial reason to allow a claim against a foreign defendant to be brought in the UK courts. Such cases had always been treated with caution, however a claimant might suffer damage in more than one place.

As to forum, Lord Sumption JSC (dissenting) stated:  It is undoubtedly convenient for the country of the forum to correspond with that of the proper law. It is also true that both jurisdiction and choice of law can broadly be said to depend on how closely the dispute is connected with a particular country. But there is no necessary connection between the two. The Practice Direction contemplates a wide variety of connecting factors, of which the proper law is only one and that one is relevant only to contractual liabilities. 

His Lordship went on to observe: The jurisdictional gateways and the discretion as to forum conveniens serve completely different purposes. The gateways identify relevant connections with England, which define the maximum extent of the jurisdiction which the English court is permitted to exercise. Their ambit is a question of law. The discretion as to forum conveniens authorises the court to decline a jurisdiction which it possesses as a matter of law, because the dispute, although sufficiently connected with England to permit the exercise of jurisdiction, could be more appropriately resolved elsewhere. The main determining factor in the exercise of the discretion on forum conveniens grounds is not the relationship between the cause of action and England but the practicalities of litigation. 

Having initially sued the wrong company in Four Seasons, the claimant turned her attention to the hotel operator in Egypt. The High Court permitted amendment to the claim from – issued in December 2012 – and service against the defendant in Egypt.

In FS Cairo (Nile Plaza) LLC v Lady Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) [2021] UKSC 45, Lord Lloyd Jones JSC on the subject of forum stated at para 80: the forum non conveniens principle is not a mere general discretion, the application of which may vary according to the differing subjective views of different judges creating a danger of legal uncertainty. On the contrary, the principle applies a structured discretion, the details of which have been refined in the decided cases, in a readily predictable manner.

Important points of guidance on determination of the appropriate forum in ‘service out’ cases was given by Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd[1987] AC 460: (i) the burden is on the claimant not merely to persuade the court that England is the appropriate forum but to ‘show that this is clearly so’; (ii) the fundamental principle is that the court ‘has to identify in which forum the case could most suitably be tried for the interests of all the parties and for the ends of justice’; (iii) the court is required to reach an evaluative judgment upon whether, in the light of the relevant considerations – of private international law rules on the doctrine of forum conveniens as derived from extensive case law, England is clearly the more appropriate forum; (iv) each case depends on its own particular facts.

In Moore v MACIF – 2022/WL/18636659 Mayors & City of London County Court His Honour Judge Hellman held that England was not the correct jurisdiction to hear a personal injury claim relating to injury sustained by Mr and Mrs Moore in a road traffic accident whilst on holiday in France. The judge quoted Lord Lloyd Jones’ words “79.  The discretionary test of forum non conveniens, well established in our law, is an appropriate and effective mechanism which can be trusted to prevent the acceptance of jurisdiction in situations where there is merely a casual or adventitious link between the claim and England. Where a claim passes through a qualifying gateway, there remains a burden on the claimant to persuade the court that England and Wales is the proper place in which to bring the claim. Unless that is established, permission to serve out of the jurisdiction will be refused”.

So, passing through the appropriate tort gateway will not on its own be determinative of appropriate forum, but it will to a significant extent be a material factor under consideration. The judge was satisfied that the Moores had sustained significant damage in England, namely personal injuries comprising post-traumatic stress disorder and orthopaedic injuries that were more than merely negligible. Nevertheless, there was no dispute that French law applied to both liability and quantum. The assessment of damages would be undertaken by reference to tables, the use of which whilst commonplace in the French courts is obviously less so in the English courts. The French courts were better placed to examine concepts such as consolidation and future deterioration within the meaning of those tables. Furthermore, it did not appear that the Moores would have to attend trial in France, and their participation would be unnecessary for the resolution of proceedings.

About the Author

Giles Bedloe was called in 2001 and now specialises in fraud and financial crime, commercial dispute resolution and business regulation. He is ranked in the Legal 500 for Business & Regulatory Crime and for Fraud including money laundering and asset forfeiture. He is appointed to the CPS Specialist Fraud Panel and the Attorney General’s Panel of Specialist Regulatory Counsel. As part of his commercial defence practice, Giles regularly advises and represents individuals before the professional and disciplinary tribunals, and businesses before their regulators. Giles has particular expertise in matters involving the pensions and financial services ombudsmen.