The Dekagram: 22nd April 2024

We’ve said it before, and no doubt will again: you wait ages for a jurisdiction challenge to come along, and then a bunch of them come along at once. The post-Brexit avalanche of challenges continues unabated, this week seeing cases involving highly unusual facts from which we can nevertheless learn more about the way in which the courts are approaching these issues. Meanwhile, the team were honoured to be invited to speak at the Clyde & Co Deka Chambers Symposium on Air Accessibility, which key industry players and advocacy groups attended by invitation – we will report back on the learning points we took from the day next week.

Mussa v Issa and 4 others [2024] EWHC 763 (Ch)

This case provides an interesting illustration of the operation of forum non conveniens in a case with particularly unusual facts.

The Claimant previously resided in Malawi and had various business interests there. When the Claimant moved to the UK, he was unable to transfer all of his funds to the UK because of Malawian currency restrictions. The Claimant’s case was that he had orally instructed the First and Second Defendants to manage his affairs in Malawi and to make and receive various payments on his behalf. The Claimant contended that they had not applied the monies in accordance with his instructions.

The Claimant had already brought similar proceedings in Malawi, which were at an advanced stage. The Defendants contended that it would be an abuse of the process for the Claimant to pursue parallel proceedings in two jurisdictions. The Court held that the proceedings in England and Malawi overlapped, such that both should not be allowed to proceed. The Claimant was willing to elect to discontinue the proceedings in Malawi to allow the English proceedings to continue. 

The question was whether they should be allowed to continue, or whether they should be stayed on grounds of forum non conveniens.

The court identified a number of factors connecting the claim to Malawi: it was based on an agreement, made in Malawi, for the First and Second Defendants to manage the Claimant’s Malawian affairs; it involved considering the Claimant’s alleged instructions about payments to and from various third parties in Malawi; and there were prior (and ongoing) proceedings in Malawi.

The factor particularly linking the matter with England was that the Claimant alleged that the relevant payments were made to and from bank accounts in this jurisdiction. This was surprising given that the purpose of the alleged agreement was managing monies and business interests in Malawi. The Claimant’s explanation was to allege that the First Defendant operated “shadow” banking facilities in England, whereby currency was transferred between accounts outside Malawi to enable money to be transferred without transferring currency, and whereby currency could be transferred from Malawi in a manner avoiding currency controls.

The judge concluded that, on the Claimant’s case, he chose to use the First Defendant’s “shadow” banking facilities so as to avoid financial controls in Malawi. The courts in Malawi were better equipped with specialist knowledge to determine the merits of such a claim and indeed had a particular interest in doing so on public policy grounds. Any factors linking the claim to England were “dwarfed” by the factors linking the claim to Malawi.

There were no factors of convenience, cost or delay pointing to England rather than Malawi. The claim in Malawi was ready for trial, the claim in England was only just beginning. Witnesses in the UK could give evidence in Malawi by videolink. Whilst the Claimant would have to travel to Malawi, that was the result of having chosen to bring proceedings there. A similar argument applied to the fact that proceedings in Malawi could not be pursued by a litigant in person.

The Claimant contended that, notwithstanding the above, justice required that the proceedings in England should continue. The court gave these contentions short shrift. The Claimant had no proper evidence to back up his claim and it was contradicted by evidence from the Defendants. The judge noted that a conclusion that a foreign jurisdiction would not provide substantial justice risks offending international comity, and that such a finding “requires cogent evidence, which may properly be subjected to anxious scrutiny” (Vedanta Resources plc [2020] AC 1045 at 11, per Lord Briggs). The judge observed that the Claimant had already chosen to bring proceedings in Malawi, and incurred significant legal costs there, which would be a surprising tactic if the Claimant’s allegations were correct.

As a result, the English proceedings were stayed. Had they not been, the judge indicated he would have given retrospective permission to cure a procedural defect with service, to avoid the need for a new claim to be issued and (properly) served.  

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Tier 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

Ibrahim v AXA Belgium [2024] EWHC 856 (KB)

In a recent decision Master Fontaine gave guidance as to the procedure to be followed when making jurisdictional challenges; the decision is also of interest as illustrating the approach the courts may take to arguments around forum non conveniens.

The facts

Mr Ibrahim sustained complex life changing injuries in a road traffic accident in Belgium which occurred on 15^th March 2019. The driver responsible for the accident, a Belgian, was insured by AXA Belgium, which admitted liability for the accident on his behalf by letter dated 23^rd March 2021. There followed negotiations which proved fruitless, and on 21^st August 2023 the Claimant issued proceedings. On 10^th October 2023 the Defendant’s solicitors confirmed that they were nominated to accept proceedings, which by agreement were duly served by email on 10^th January 2024. On that date the Defendant’s solicitors filed and served an Acknowledgment of Service in which no point on jurisdiction was taken; a Defence was later served in which not only was no point taken on jurisdiction but the Defendant reiterated its admission of liability. Meanwhile the Defendant issued and served Belgian proceedings in which it asserted that the courts of Belgium had exclusive jurisdiction.

The explanation for this apparently contradictory approach on the part of the Defendant was that – as its English solicitors conceded – each of AXA’s representatives in the two jurisdictions did not know what the other was doing.

The Claimant applied for judgment on the admission contained in the Defence; the Defendant cross applied for a stay of proceedings on the grounds of forum non conveniens.

The application

Pursuant to CPR Part 11 any jurisdictional challenge must be made within 14 days of filing an Acknowledgment of Service. The Defendant’s application was made 30 days out of time, but this was not fatal to it. It was common ground between the parties that the court could grant permission to apply out of time if it was satisfied having conducted a Denton v T. H. White Limited [2014] EWCA Civ 906  exercise that it was just to do so.

Master Fontaine considered that a 30 day delay in the context of a 14 day time limit was serious and significant. Furthermore, there was no good reason for it; simply, the left hand of the insurer did not know what the right hand was doing. She also considered it relevant that the Defendant gave Mr Ibrahim and his representatives no warning that it intended to issue proceedings in Belgium, meaning that he had incurred significant costs within this jurisdiction, and undergone a number of medical examinations, including by the Defendant’s own instructed expert. She concluded that in the unusual circumstances of this case, particularly the insurer’s internal miscommunications, which could not be laid at the door of the Claimant, the Defendant should not be allowed to challenge jurisdiction. She held:

“It was submitted by the Defendant that this court should not shut out a foreign defendant from making an application to allow this court to consider which is the more appropriate jurisdiction.  But the Defendant is shut out only by reason of its own conduct.  It had the same opportunity as any other foreign defendant to make an application, and it had the advantage of having English solicitors already instructed and dealing with the English proceedings, so I cannot conclude that this is a factor which assists the Defendant.” 

Because the issue of forum non conveniens had been fully argued, Master Fontaine went on to consider it.

forum non conveniens

Because the Defendant had been served within the jurisdiction as of right, insurers having nominated English solicitors, the burden of proof rested on the Defendant to show that there was another forum in which it was ‘clearly and distinctly’ more appropriate for the claim to be heard.

The factors connecting the claim to Belgium included the following:

1. The accident occurred there;
2. The applicable law was therefore Belgian;
3. The tortfeasor and insurer were domiciled there;
4. The Defendant’s Belgian law expert opined that the courts of Belgium would consider that they had exclusive jurisdiction over the claim;
5. The Defendant’s Belgian law expert opined that enforcing an English judgment in Belgium would not be straightforward;
6. There was a suggestion that the Claimant could speak Dutch.

The factors connecting the claim to the jurisdiction of England and Wales included the following:

1. The Claimant and his family were resident in England at the time of the accident, and remain so;
2. All of the lay and expert witnesses were located within the jurisdiction;
3. The parties’ solicitors were located within the jurisdiction;
4. The Claimant could not in fact speak Dutch and so could not understand the trial if it were held in Belgium;
5. By reason of the injuries he sustained in the accident it would be difficult for the Claimant to travel to Belgium for the trial;
6. The English courts are well able to apply the Belgian tariff system, with the assistance of expert lawyers, who could give evidence to the English courts by way of videolink;
7. The Belgian law expert instructed by the Claimant did not agree that the Belgian courts would consider that they had exclusive jurisdiction, or that it would be difficult to enforce an English judgment in Belgium.

Furthermore, the Claimant would gain legitimate practical and juridical advantages by bringing his claim within this jurisdiction. He could seek and obtain judgment on the admission, and thereafter much-needed interim payments, whereas there was no indication that this would be the case in Belgium. Moreover, his injuries were complex and the medical experts so far instructed considered that there was a range of opinions regarding attribution and prognosis. In Belgium the court would appoint one, two, or at most three court experts to opine as to them, whereas in England a more comprehensive suite of experts could be consulted. Due to the Defendant’s apparent acceptance of the jurisdiction of the English courts the Claimant had incurred significant costs, but the evidence was that he could be awarded no more than €42,000 in respect of costs if successful, and the shortfall in past and future costs would have to be met from his damages award.

Master Fontaine considered all the competing factors and concluded that the Defendant had failed to show that Belgium was clearly and distinctly the more appropriate forum in which to hear the claim. In doing so she employed an issues based approach – she identified the issue between the parties, namely quantum, and asked herself whether that issue was more closely connected to England or to Belgium. Perhaps unsurprisingly she concluded that given that Mr Ibrahim was resident in England, that was the forum with the closer connection to that issue.

As to enforcement:

“It is clear from the evidence of both Mr Willems and Mr Mul that, as one would expect, enforcement of a Belgium judgment in Belgium would be easier and quicker than enforcement of an English judgment in Belgium, particularly post Brexit.  That is a relatively neutral factor, in that it has not deterred the Claimant from preferring the jurisdiction of his home court.  Further, one might expect that the Defendant, part of a substantial international insurance group, would not require a judgment of this court to proceed through an enforcement process, and that they would honour the judgment of the English court, particularly in circumstances where apparently lack of communication between the Defendant in Belgium and AXA UK has caused the situation of dual proceedings to arise at this late stage, almost 5 years after the accident.”

Not only was England the more appropriate forum, but Master Fontaine found that in any event it would be unjust to prevent Mr Ibrahim from bringing his claim within this jurisdiction. This was because the medical evidence demonstrated that he would have difficulty in travelling to Belgium, and he had signed a witness statement to the effect that he would not be able to understand the language of the court and he would therefore be prejudiced in giving instructions to his lawyers.

Further, as to costs:

“The Claimant has incurred legal costs and disbursements in England, and it has not suggested by the Defendant that it would compensate him for those costs and disbursements if the proceedings were to be stayed.  The Defendant has submitted that the Claimant entered into a CFA after the Brexit transition period, and his solicitors should have been aware that it was always open to the Defendant to seek a stay in favour of the Belgian court.  However, the Defendant was dealing with the intended claim in England from 14 December 2020, when his letter of claim was acknowledged by AXA UK, who continued to act as agent for the Defendant in relation to the claim.  There was no suggestion from that time until 18 January 2024, when the Claimant was served with the Belgian writ of summons, without prior notification, that the Defendant intended to challenge the High Court as the most appropriate forum.  Accordingly the Defendant has by that omission led the Claimant to incur no doubt further significant costs in pursuing his claim in this jurisdiction.”

This element of the judge’s reasoning could of course have been eliminated had the Defendant chosen to give an undertaking as to costs, as in some other cases of jurisdictional challenge.

Comment

Master Fontaine is a highly respected judge with a good deal of experience in jurisdictional challenges of this nature, but this was an unusual set of facts because the challenge was made out of time due to the Defendant’s own internal confusion. Her decision to prevent the Defendant’s application from proceeding was, it is suggested, the right one – where an application is made late for no better reason than miscommunication on the part of a properly advised legally sophisticated party, and where there is some prejudice to the other side, it will be surely rare indeed for relief to be granted.

Moreover, the Defendant’s position on jurisdiction was an unattractive one. Having apparently accepted the jurisdiction of the English court throughout, including filing a Defence to the claim, it suddenly altered course completely, and no reason was provided for this change of heart. Its implicit threat not to comply with any judgment of the English courts may also have been something of an own goal.

The outcome is also yet another reminder that a party dealing with a jurisdictional challenge – whether it be from the claimant’s or from the defendant’s point of view – should consider the position holistically. Because of the broad nature of the discretion, it is crucial that every circumstance is taken into account and evidenced meticulously, from the claimant’s linguistic proficiency to his or her mobility, and including the availability of procedural advantages and reliefs in all potential jurisdictions. It may also be that the courts are more willing, post membership of the EU, to take on the burden of applying foreign law; after all, for many years and until recent times they have been doing so regularly, and they are now more familiar with concepts of foreign law than perhaps at the time earlier authorities were decided. In Ibrahim Master Fontaine had regard to the fact that the Claimant was able to point to a recent case in which the High Court had applied Belgian law to the issues of both liability and quantum, with no apparent difficulty at all. There was nothing to suggest that the Belgian tariff system is any more difficult to interpret than, say, the French or Spanish tariff system, with which all of the Kings Bench Masters (and anyone who works in this field) are all too familiar.

Sarah Prager KC, instructed by Scott Rigby of Stewarts Law, represented the Claimant Mr Ibrahim in this case.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.