Lack of certainty in jurisdiction challenges

A recent decision in the county court highlights the uncertainties faced by claimants and defendants on whether or not the English court will accept jurisdiction where a defendant has been served outside of England and Wales.

In Moore v MACIF, HHJ Hellman sitting in the Mayor’s & City of London County Court concluded on forum non conveniens grounds that the English court should decline jurisdiction in favour of the French courts.

The two claimants were on holiday in France when they suffered injuries in a road traffic accident. MACIF were the insurer for the vehicle which collided with the claimants. The claimants returned to their home in England and, as per the judge’s findings, the majority of the duration of their injuries were suffered within the jurisdiction.

There was no dispute that the claimants satisfied the tort gateway that “damage was sustained or will be sustained within the jurisdiction” and the claims had reasonable prospects of success. Forum non conveniens was the only issue before the judge on the jurisdiction challenge. The forum non conveniens test should be applied as forward-looking into the nature of the dispute at trial, for example, the location of witnesses and evidence. The court should then decide against the factual matrix if England is the proper place for the claim to be bought, as per Spiliada.

In support of their case that the English court did have jurisdiction, the claimants relied on the fact that damage had been experienced in England, that it was easier for the defendant insurance company to litigate in England than it was for the claimants to litigate in France, that medical evidence had already been obtained in accordance with English procedure and that being forced to return to France would exacerbate the claimants’ psychological symptoms. The claimants’ counsel emphasised that to ensure predictability significant weight should be allowed for the fact of where the majority of the damage was sustained, as per the key decision on jurisdiction of Brownlie.

By way of counter, the defendant asserted that France was prima facie the correct forum as the accident occurred there, the defendant was domiciled in France and the French courts would be better placed to deal with the substantive issues on liability and quantum which would be subject to French law. Litigating in England would require additional expert evidence in French law. Whilst the claimant already had a French medico-legal report, that expert may require an interpreter for a final hearing in England. Finally, the defendant adduced evidence that the claimants would not have to attend trial in French proceedings.

The judge concluded that when weighing the factors, the claimants had not shown that England was clearly the appropriate forum, seemingly placing most of the weight on the applicable law factor, that French courts would be best placed to interpret and apply French law.

Given that the English courts are routinely required to interpret matters of foreign law, it is perhaps surprising that the judge sided with the defendant in this case. It should be noted that this is the first reported success of jurisdictional challenge post-Brownlie on the grounds of forum non conveniens.

Given that the arguments put forward on either side were those that would be common to almost all personal injury claims where the accident occurred out of jurisdiction, this judgement does appear to be out of kilter with others decided. Whether this is the start of a more restrictive approach of the courts on hearing cross-border claims in the Courts of England & Wales or simply an outlier judgement remains to be seen.

As quoted in the judgment, Lord Lloyd Jones in Brownlie had referred to the test of forum non conveniens as providing “a structured discretion…in a readily predictable manner”.  This case seems to demonstrate that the application of the test is not as predictable as the Supreme Court professed. It highlights the need for certainty for all litigants that would be brought by the UK’s accession to the Lugano Convention.

David Thompson is co-lead of Clyde & Co's Cross-Border Subject Matter Group.