The Dekagram: 28th July 2025

In this week’s Dekagram Thomas Yarrow considers an issue which has been the subject of some considerable controversy ever since the changes to the jurisdictional rules wrought by Brexit; and provides us with a characteristically erudite summary of the arguments, which (to the editor’s eye) appear to apply equally to employers’ liability claims as well as consumer contract claims. We await future events with interest and hope and expect to see Thomas arguing the point before the Supreme Court in due course.

Consumer Contracts and Forum Non Conveniens

Every now and then, a Court will state a proposition as if it were settled law, without having heard argument and without having appreciated that it might be an issue of some controversy. Such appears to have occurred in the case of Alesayi v Bank Audi S.A.L. [2025] EWHC 1033 (KB). In the introductory section of his judgment, at paragraph 6, Mr Justice Constable said blithely of the special rules on jurisdiction for consumer contracts, set out in sections 15A-E of the amended Civil Jurisdictions and Judgment Act 1982 (“CJJA”), as follows:

‘Sections 15B and 15E are a restatement and retention in UK domestic law of the consumer protections contained in Brussels Recast, following the UK’s withdrawal from the EU. It is true, in circumstances where once the CJJA is engaged there is no separate role for a principle of forum (non) conveniens, that the entire weight of the jurisdictional question is borne by the question of whether the provisions of the CJJA are available.’

Is that emphasised section ‘true’? Is there no role for a forum (non) conveniens dispute in a claim meeting the special consumer requirements of sections 15A-E CJJA? With respect to the Judge it probably is not, in law, true.

The judge may have forgotten (likely because he was not directed that way) section 49 of the CJJA. This section (now) provides:

‘Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 2005 Hague Convention.’

Importantly, while the UK was a member of the Brussels and Lugano Conventions, section 49 also required that the operation of forum non conveniens should not be ‘inconsistent with’ those Conventions (hereafter, I’ll refer to them broadly as ‘the Brussels regime’). Those references were removed by secondary legislation made under the EU (Withdrawal) Act 2018.

The clash between English common law (which traditionally applied forum (non) conveniens as a back-end filter on all jurisdictional disputes) and the Brussels regime arose in earnest in the case of Owusu v Jackson (Case C-281/02) [2005] Q.B. 801. In that case the English courts made a reference to the Court of Justice of the European Union on the question of whether it would be appropriate for the courts of a Brussels member state to decline jurisdiction on forum non conveniens grounds where the more appropriate forum was a third country, not a Brussels member state (in that case, Jamaica). The Court of Justice replied that it was not open to a court of a contracting state to decline jurisdiction conferred on it by the Brussels regime on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action.

Although restricted to Article 2 of the, then, Brussels Convention, Owusu v Jackson and section 49 CJJA were then considered together in a reported case from the Sheriff’s Court in Scotland, Oceanfix International Limited v AGIP Kazakhstan North Caspian Operating Company NV (Case Ref: CA17/08, Aberdeen, 3 April 2009, Sheriff J K Tierney). There, the Sheriff stated as follows, at 69:

‘In my opinion to sustain the defender’s plea of forum non conveniens and sist the action in order that the matter can be litigated in Kazakhstan would be to derogate from the principle of legal certainty which is the basis of Regulation No.44 and from the objective of the Regulation, namely to lay down common rules to the exclusion of derogating national rules. An answer could be obtained in a UK court directly opposite to the answer in those other jurisdictions which do not recognise forum non conveniens That would be inconsistent with the Regulation and therefore would not fall within the provisions of section 49 of the 1982 Civil Jurisdiction and Judgments Act.’

Although of only limited authoritative value in England, given the level of Court and the Scottish jurisdiction, nothing said by the Sheriff is inconsistent with the approach taken by the English courts while the UK was a Brussels member state. Indeed as recently as Vedanta Resources Plc v Lungowe [2019] UKSC 20, the Supreme Court was saying that the decision of Owusu v Jackson ‘fetters and paralyses the English forum conveniens jurisprudence’, in the Brussels context.

But what of the position after the UK’s withdrawal? Does the forum (non) conveniens jurisprudence continue to be so fettered; or is this an area of Brexit liberation? Mr Justice Constable said in the passage quoted above that sections 15B and E are a ‘restatement and retention in UK domestic law of the consumer protections contained in Brussels Recast’, but the use of the word ‘retention’ in that sentence is potentially misleading. They are not provisions of ‘retained EU law’ under the EU (Withdrawal Act) 2018 (now termed ‘assimilated law’ under the Retained EU Law (Revocation and Reform) Act 2003). They are provisions of UK primary legislation enacted by Parliament, in implementation of a decision of UK domestic policy. They do not fall to be considered in the same way as assimilated EU law.

Nevertheless, the effect of EU law is of course relevant to their interpretation. Section 15A(2) tells us that sections 15B (and 15C) apply to the types of proceedings which would be in scope of the Brussels regime, and section 15E(2) tells us that in determining ‘any question as to the meaning or effect’ of the provision, ‘regard is to be had to any relevant principles laid down before IP completion day by the European Court’. ‘Regard’, however, is not the same as ‘application’.

A possibly helpful comparison might be the pre-Brexit so-called ‘Modified Convention’ which the UK applied under the CJJA as a matter of domestic policy for determination of the questions of jurisdiction between different parts of the UK. In Kennedy v The National Trust for Scotland[2019] EWCA Civ 648, the judge at first instance had stayed an action in England on the basis of forum non conveniens. The Claimant had argued that the discretion in section 49 was precluded by reason of the rule in Owusu v Jackson. However the Court of Appeal disagreed. In their view, to succeed in arguing that applying forum non conveniens was inappropriate it would be ‘necessary to show that the grant of a stay would be tantamount to a court of a Member State declining to exercise a mandatory rule of jurisdiction under the Regulation.’ And that was not the case in this case – not least because the Regulation could not be offended because it was not engaged.

In essence, it could be said that the fundamental reason why the English common law jurisprudence on forum (non) conveniens was disapplied is because it was inconsistent with the manner in which the EU developed the 1968 Convention into a ‘single market’ principle. To allow member states to apply their own forum (non) conveniens filters in a situation where the particular jurisdictional question would otherwise be determined solely by operation of the Brussels Regulations would be to offend against the central goal of European harmonisation. It would be market distorting.

It is not surprising therefore, given the EU’s treatment of the Brussels regime as a ‘single market’ issue, that the UK made a conscious decision to remove the words from section 49 ‘where to do so is not inconsistent with the 1968 Convention’. That choice must have been made for a reason – Parliament must be considered to have acted rationally in deleting those words. That deletion meant that the UK was not adopting, wholesale, the position under EU law, but in effect was removing a point of deference and resurrecting its traditional common law position.

Accordingly, it is respectfully suggested that Mr Justice Constable was wrong and arguments of forum (non) conveniens will be available to defendants seeking to challenge jurisdiction in cases where section 15B is otherwise met. However, it will be a rare case in which a consumer meets the requirements of section 15B, and it may be some time before the issue is tested.

About the Author

Before coming to the Bar, Thomas worked as a Civil Servant, including as a policy advisor at the Brexit Department. His former experience gives him an encyclopaedic knowledge of legislation, treaties and international conventions in the field of Private International Law, which he has applied to his cross-border practice, building a reputation as a go-to barrister for complex questions of jurisdiction and applicable law. He wrote the relevant chapter on such in the latest edition of the leading practitioner textbook, Saggerson on Travel Law and Litigation. His travel practice spans cross-border personal injury, commercial disputes and consumer protection.