Owusu v Jackson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 19 June 2002 |
| Neutral Citation | [2002] EWCA Civ 877 |
| Docket Number | Case No: B3/2001/2376, B3/2001/2388, |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 2002 |
[2002] EWCA Civ 877
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Judge Bentley QC, sitting as a deputy high court judge
Lord Justice Brooke
Lord Justice Latham and
Mr Justice Hart
Case No: B3/2001/2376, B3/2001/2388,
B3/2001/2400, B3/2001/2400A
Colin Thomann (instructed by Myers Fletcher & Gordon) for the First Defendant
Christopher Strachan (instructed by Saunders & Co) for the Third Defendant
Stephen Grime QC (instructed by Lovells) for the Fourth & Sixth Defendants
Richard Plender QC & Philip Mead (instructed by Russell Jones & Walker) for the Claimant
INDEX
| 0 | Part No. Para No | |
| 1 | Introductory | 1 |
| 2 | The Facts | 2 |
| 3 | The Procedural History | 8 |
| 4 | The evidence | 12 |
| 5 | The judgment of Judge Bentley QC | 19 |
| 6 | The appeal to this court | 22 |
| 7 | Issues of English Law: | (i) CPR 6.21(4) 23 |
| (ii) The delivery of the judgment at Sheffield | 24 | |
| (iii) Forum Conveniens | 29 | |
| (iv) Joinder of the Jamaican defendants | 31 | |
| 8 | Issues of Jamaican law | 33 |
| 9 | The issue of Community law: Introductory | 37 |
| 10 | The issue of Community law: the defendants' arguments | 48 |
| 11 | The issue of Community law: the claimant's arguments | 50 |
| 12 | The reference to the European Court of Justice | 59 |
This is the judgment of the court.
Introductory
This is an appeal by the first, third, fourth and sixth defendants (whom we will call D1, D3, D4 and D6) against an order of Judge Bentley QC sitting as a deputy high court judge at Sheffield on 16th October 2001 whereby he dismissed D1's application for a stay of the action, D3's application for an order that the court should not exercise its jurisdiction to grant permission to serve these proceedings outside the jurisdiction of the English court, and the application by D4 and D6 (who are jointly represented) contesting the jurisdiction of the court under CPR Part 11. D2 and D5 have not been served with the proceedings.
The Facts
Both the claimant Andrew Owusu and the first defendant, Mr N B Jackson (trading as Villa Holidays Bal-Inn Villas), are domiciled in England. The other five defendants are limited liability companies domiciled in Jamaica. The action arises out of a very serious accident to Mr Owusu when he was bathing in the sea on a holiday in Jamaica on 10th October 1997. He walked into the sea, and when the water was up to his waist he dived in, and struck his head against a submerged sand bank which constituted a concealed hazard. He sustained a fracture of his fifth cervical vertebra which rendered him tetraplegic.
The involvement of the defendants who are parties to this appeal comes about in the following way. Mr Owusu's claim against D1 is in contract. He rented a two-bedroomed holiday villa at Mammee Bay, Jamaica, from D1. The contract provided that he would have access to a private beach, and he maintains that it was an implied term of this contract that the beach would be reasonably safe or free from hidden dangers.
D3, the Mammee Bay Club Ltd, own the foreshore of Mammee Bay, a beach which is close to this villa. They supplied Mr Owusu with a free beach pass, and in effect he brings his action against them in tort as owners and occupiers of the beach. We were told by the claimant's advocate that we could disregard the claim against them in contract.
D6, Town and Country Resorts Ltd, operate a large hotel called The Enchanted Garden adjoining the beach. They have been granted a licence to use the beach subject to a condition that they should be responsible for the management, upkeep and control of the beach during the term of their licence.
D4, The Enchanted Garden Resorts and Spa Ltd, operate a holiday complex close to Mammee Bay. Their guests were also licensed to use the beach. D4 and D6 are associated Jamaican companies. Mr Owusu's claim against them lies in tort.
After Mr Owusu had his accident, it came to his advisers' attention that another English holiday-maker, Alexandra Rickham, had had a similar accident two years earlier in which she, too, was rendered tetraplegic. His claim in tort against the Jamaican defendants therefore embraces not only a contention that they failed to warn swimmers of the hazard constituted by the submerged sand bank but also a contention that they failed to heed the previous injury to Alexandra Rickham. She is pursuing an action for damages in the courts of Jamaica which is due to be tried in June 2002. In her case there was no potential defendant domiciled in England.
The Procedural History
These proceedings were started by a claim form issued out of the Sheffield District Registry of the High Court on 6th October 2000. They were served on D1 in England, and on 12th December 2000 Deputy District Judge Beevers granted permission to the claimant to serve the proceedings on D2-D6 at their residence in Jamaica. This order was made without notice pursuant to CPR 6.20(3) which provides that:
"6.20 In any proceedings to which rule 6.19 does not apply, a claim form may be served out of the jurisdiction with the permission of the court if –
…
(3) a claim is made against someone on whom the claim form has been or will be served and –
(a) there is between the claimant and that party a real issue which it is reasonable for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim."
The English courts have interpreted the words "proper party" as including any person who may be joined in proceedings in accordance with the rules as to joinder of parties ( Massey v Haynes [1881] 21 QBD 330). CPR 7.3 provides in this context that
"A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings."
D1 was served in England, and he is at present the only defendant to have served a defence. So far as is material he avers:
"(1) that although it was an implied term of his agreement with Mr Owusu that the accommodation he supplied would be reasonably safe, there was no such term in relation to the beach;
(2) that Mr Owusu wholly caused or contributed to his injuries by his own negligence, particulars of which are set out."
D3, D4 and D6 were served with the proceedings in Jamaica. On 11th April 2001 D4 and D6 made an application pursuant to CPR 11(1)(b) for a declaration that the court should not exercise its jurisdiction in relation to the claim against them, and for consequential orders that the service of the claim form be set aside and that the action against them be stayed. On 8th May 2001 D3 made an application which was in substance to similar effect, although in form it also sought a direction that the deputy district judge's jurisdiction to give leave to serve the proceedings out of the jurisdiction should be set aside because D3 was prejudiced by such an order. CPR 11(1) provides that:
"11(1) A defendant who wishes to
(a) dispute the court's jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction,
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have."
CPR(11)(b) gives the court on such an application the power to make orders of the type sought by D3.
The evidence
The application by D4 and D6 was supported by a witness statement by their English solicitor. He exhibited some photographs of the beach and its surrounds and said that from his clients' initial investigation he believed that Mammee Bay was a gently shelving beach of a kind which must be extremely common throughout the holiday and resort areas of the Caribbean. He suggested that the beach was obviously a natural beach where as a matter of common sense variations in the depth of water and the occasional presence of sand bars or banks would be expected.
After setting out information relating to the role of the various Jamaican defendants in relation to the beach, he said (in paras 19 and 20 of his witness statement):
"19 On behalf of the Fourth and Sixth Defendants I would suggest that it is obvious that Jamaica provides the natural and appropriate forum for the trial of the Claimant's action. The features which connect the action with Jamaica are entirely obvious but those of greater significance are:
(1) save for the First Defendant, all other Defendants are resident in Jamaica and carry on their respective businesses there;
(2) apart from any contract between the Claimant and the First Defendant, the contractual arrangements involving the Second to the Sixth Defendants were presumably all made in Jamaica and would be subject to Jamaican law;
(3) any duty which either the Fourth or the Sixth Defendant may have owed either as occupiers of the beach at Mammee Bay (if they were occupiers) or in any other capacity would be the duty imposed by the law of Jamaica;
(4) the question of breach of any duties imposed by the law of Jamaica would, presumably, be considered in a Jamaican court with particular reference to and knowledge of the prevailing customs and standards applied to tourist resorts and beach use in Jamaica and under Jamaican conditions;
(5) save for the Claimant, all witnesses to the circumstances of the accident of which I am...
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