The revival of forum non conveniens – Klifa v Slater & Anor
On 28 February 2022, Master Dagnall handed down judgment in the travel law case of Klifa v Slater & Anor [2022] EWHC 427 (QB). The judgment considers the application of the principle of forum non conveniens and provides useful guidance on how this question will be approached in the English courts following Brexit.
The claim
The claim arose out of a skiing accident at Courchevel, France, on 27 January 2018, in which the Claimant was seriously injured by the negligence of the First Defendant (insured by the Second Defendant). Liability was admitted but quantum remained in dispute. On its face, this was therefore a relatively straightforward personal injury claim.
However, the international context and the timing of the claim created procedural complexities. The Claimant was domiciled and resident in France but pursued her claim in England, where both Defendants were domiciled. The Claimant sent a Letter of Claim to the Defendant on 20 April 2018. At this time, the Recast Brussels Regulation (“the Regulation”) applied to the claim, under which the Claimant was entitled to bring her claim in England as the member state in which both Defendants were domiciled. The Regulation did not allow an English court to decline jurisdiction on the grounds of forum non conveniens (Owusu v Jackson [2005] QB 801). However, by the time the claim was issued on 14 January 2021, the Regulation had ceased to apply because of the provisions of the Article 67(1) of the UK’s Withdrawal Agreement from the EU. Jurisdiction over the claim was therefore governed by the English law on jurisdiction alone, including the principle of forum non conveniens. The Defendants accordingly applied for the court to decline jurisdiction and stay the English proceedings on the grounds of forum non conveniens, arguing that France was the more appropriate forum.
The decision
Having regard to the well-known principles set out by Lord Goff in The Spiliada [1987] AC 460, Master Dagnall held at [18] that, where a defendant has been served with proceedings in England and Wales, a defendant seeking a stay of proceedings must show that another jurisdiction is clearly or distinctly the more appropriate forum for the claim. This involves consideration of several factors, including the convenience and expense of bringing the claim and the factors connecting the claim to each jurisdiction. However, if a defendant satisfies this burden, a stay may still be refused if a claimant can show that they will not obtain “substantial justice” in the foreign jurisdiction. A claimant must show that they would lose a legitimate personal or legal advantage from being required to sue in the foreign jurisdiction – mere procedural disadvantage, where that procedural approach is reasonable, will not suffice. Master Dagnall added at [18(iv)]:
“I am not entirely sure whether this is strictly a two-stage test where the Claimant has to fail at both stages (although it is clear that the burden of satisfying the court is on the Claimant with regard to the second stage) for the stay to be granted rather than a two-stage analysis with a holistic consideration of all the matters together. However, that is unlikely to (and in the circumstances of this case, I hold does not) result in a different outcome in practice”
Nonetheless, Master Dagnall applied a two-stage test when considering the facts of the claim. He held first that the Defendants had failed to satisfy him that France was clearly or distinctly the more appropriate forum for the claim. The Defendants and their lawyers were based in England and enforcement of an English judgment could take place in England without the need to invoke enforcement processes under the Foreign Judgments (Reciprocal Enforcement) Act 1933. Further, the foreign elements of the claim could be dealt with straightforwardly. The claim was considered “relatively simple and straightforward, involving a formulaic and algorithmic process of analysis under French law” which an English court was capable of addressing without any apparent need for expert evidence on French law. The Claimant was capable of giving evidence in English and did not intend to call further witnesses of fact. Although her expert witnesses were French, the Defendants had not indicated any substantial points of dispute which would make their evidence central to the claim. Master Dagnall therefore held that England was clearly and distinctly the more appropriate forum for the claim.
For the sake of completeness and “because the correct test may be an overall holistic one”, Master Dagnall then considered whether the Claimant would suffer injustice as a result of being required to sue in France. Particularly relevant was the fact that the Claimant had incurred substantial costs in complying with the CPR Personal Injuries Pre-Action Protocol from 20 April 2018 onwards, which would now be irrecoverable under French law. The Defendants had not warned the Claimant at any time that they would seek to challenge English jurisdiction once no longer governed by the Regulation, contrary to the “cards on the table” approach encouraged by the Pre-Action Protocol. Master Dagnall held that the Defendants had adopted a tactical approach, with no real benefit to themselves in having the claim determined in France. It was therefore held that the Claimant had a legitimate personal advantage in not wasting the costs she had already incurred in pursuing her claim in England. The stay was therefore refused, and the claim will now proceed in England.
Comment
The decision in Klifa provides useful guidance on how the doctrine of forum non conveniens will be applied at first instance post-Brexit. The doctrine was side-lined under the Recast Brussels Regulation as a result of the widely criticised decision in Owusu v Jackson (although it has always remained relevant to cases falling outside the scope of the Regulation). However, given that the English common law of jurisdiction now applies in all cases coming before English courts, the doctrine of forum non conveniens is of revived importance. Klifa serves as a useful reminder firstly of the discretionary, “holistic” nature of this exercise – although Master Dagnall ultimately applied a two-stage test, it is plain that the question of forum non conveniens is one to be considered in the round. Further, Klifa emphasises the need to carefully examine the substance of the claim in order to assess whether its “foreign” elements actually pose any practical difficulties for an English court.
The decision also acts as a warning to defendants of the dangers of raising a forum non conveniens point late in the day. Klifa was unusual in this regard since, pre-action, there was no possibility of a forum non conveniens dispute in light of the application of the Recast Brussels Regulation. Nonetheless, it is clear that allowing a claimant to incur substantial pre-action costs in one jurisdiction may confer a legitimate advantage on them in proceeding in that jurisdiction, thereby preventing a stay of proceedings being granted. Defendants would be well-advised to consider pre-action whether a forum non conveniens dispute is likely to arise and communicate this to claimants at an early stage to avoid being accused of tactical litigation.
Written by Annie Mackley, Pupil Barrister.
