Robert William Cook v Virgin Media Ltd
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Floyd,Lord Justice Simon |
| Judgment Date | 14 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1287 |
| Docket Number | >Case No: B3/2015/0742 & |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2015 |
[2015] EWCA Civ 1287
The master of the Rolls
Lord Justice Floyd
and
Lord Justice Simon
>Case No: B3/2015/0742 &
B3/2015/0743
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARLISLE COMBINED COURT
HIS HONOUR JUDGE PETER HUGHES QC
3YU23532 & A27YJ437
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Philip Mead & Ms Sarah Prager (instructed by Express Solicitors Limited) for the Appellants
Miss Lucy Wyles (instructed by Berrymans Lace Mawer) for the First Respondent
Mr Derek Sweeting QC & Mr Adam Clemens (instructed by Hill Dickinson LLP) for the Second Respondent
Hearing date: 03/12/2015
In these proceedings, the claimants claim damages for personal injuries they alleged they sustained in accidents in Scotland as a result of the negligence and/or breach of statutory duty of the defendants. The claims were issued in the Northampton County Court. The registered offices of the defendants are situated in England and Wales. Both claimants are domiciled in Scotland. Liability has been admitted in the case of Cook, but denied in the case of McNeil. In the case of Cook, the defendant filed an acknowledgement of service indicating an intention to dispute jurisdiction. In the case of McNeil, the defendant filed an acknowledgement of service indicating an intention to defend the proceedings. In their defences, both defendants pleaded to the substantive claims and asserted that the Scottish courts were the correct courts to hear the claims.
Since the claims related to accidents in Scotland, the claims were allocated to Carlisle County Court, which is the court geographically closest to Scotland. DJ Park said: "we seem to be the county court for Scotland".
The files were considered by DJ Park who made orders of his own initiative on 4 March 2014 (in the case of Cook) and on 16 April 2014 (in the case of McNeil) staying both sets of proceedings on the basis that Scotland was the most convenient forum for the claims. He ordered each claimant to file evidence showing cause why the claims should proceed in England. By orders made on 2 May 2014 (in the case of Cook) and on 23 May 2014 (in the case of McNeil), he struck out both claims on the principal ground that they should have been brought in Scotland.
At a hearing held on 30 July 2014, the claimants applied to have the orders set aside. DJ Park dismissed these applications. He held that Scotland was the appropriate forum.
The claimants' appeals were dismissed by His Honour Judge Peter Hughes QC on 11 February 2015. In summary, he held that (i) the failure of the defendants to raise a jurisdictional challenge pursuant to CPR Part 11 did not prevent the court, exercising its case management powers, from striking out the claims on the basis that Scotland was the appropriate forum to deal with the cases; and (ii) the principle of forum non conveniens was not precluded by sections 16, 47 and 49 of the Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act") and the relevant case law.
It was common ground that, if the doctrine of forum non conveniens did apply, the appropriate forum would be Scotland.
The most important issue that arises on these appeals (and the reason why Tomlinson LJ gave permission for a second appeal) is whether the doctrine of forum non conveniens can apply in a purely domestic context where the competing jurisdictions are England and Scotland. Put simply, the question is: does the English court have the power in such a case to stay or strike out a claim on the ground that the natural and more appropriate forum is Scotland? It is perhaps surprising that there appears to be no authority directly on the point.
There are two distinct sets of rules governing the question of jurisdiction in civil and commercial cases in this context. The first set of rules derived from various European instruments, culminating in the Brussels I Regulation (EC) 44/2001 ("the Regulation"). Since 10 January 2015, the recast form of the Brussels Regulation, Regulation 1215/2012, has applied. The predecessor of the Regulation was the Brussels Convention of 27 September 1968. The Regulation contains rules which directly determine whether the courts of a particular member state of the EU have international jurisdiction in a particular case.
The rules for allocation of jurisdiction within the UK are set out in Schedule 4 to the 1982 Act.
Section 16 of the 1982 Act provides, so far as material:
" (1) The provisions set out in Schedule 4 (which contains a modified version of Chapter II of the Regulation) shall have effect for determining, for each part of the United Kingdom, whether the courts of law of that part, or any particular court of law in that part, have or has jurisdiction in proceedings where—
(a) the subject-matter of the proceedings is within the scope of the Regulation as determined by Article 1 of the Regulation (whether or not the Regulation has effect in relation to the proceedings); and
………
(3) In determining any question as to the meaning or effect of any provision contained in Schedule 4—
(a) regard shall be had to any relevant principles laid down by the European Court in connection with Title II of the 1968 Convention or Chapter II of the Regulation and to any relevant decision of that court as to the meaning or effect of any provision of that Title or that Chapter; and
………
(4) The provisions of this section and Schedule 4 shall have effect subject to the Regulation, Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 the 1968 Convention and the Lugano Convention and to the provisions of section 17."
Section 49 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 1968 Convention or, as the case may be, the Lugano Convention."
Schedule 4 provides, so far as material:
" 1. Subject to the rules of this Schedule, persons domiciled in a part of the United Kingdom shall be sued in the courts of that part.
2. Persons domiciled in a part of the United Kingdom may be sued in the courts of another part of the United Kingdom only by virtue of rules 3 to 13 of this Schedule."
Article 1 of the Regulation provides:
"1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters".
Article 2 provides:
"1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State."
Article 24 provides:
"Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22."
Article 60 provides:
"1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:
(a) statutory seat, or
(b) central administration, or
(c) principal place of business.
2. For the purposes of the United Kingdom and Ireland 'statutory seat' means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place."
The issues
Mr Mead on behalf of the claimants submits that (i) there was no power to strike out (or indeed to stay) the proceedings on the ground of forum non conveniens in view of the mandatory effect of (a) articles 2 and 60, alternatively (b) article 24 of the Regulation, alternatively (c) section 16 and schedule 4 of the 1982 Act; alternatively (ii) if there was such a power, it should have been exercised under section 49 of the 1982 Act and could not have been exercised by the court using its case management powers under CPR 3(3).
Does the Regulation apply in the circumstances of these cases?
Ms Wyles and Mr Sweeting QC submit that the Regulation applies to civil and commercial cases where there is an international element, but not to cases which are solely internal to a member state. Since the present cases are solely internal to the UK, the Regulation does not apply to them. They say that this is fatal to Mr Mead's arguments based on articles 2 and 16 and article 24.
Mr Mead emphasises the mandatory effect of article 2 "persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State" and article 24 "a court of a Member State before which a person enters an appearance shall have jurisdiction" (emphasis added in both instances). He also draws attention to the fact that recital (11) of the Regulation states that the rules of jurisdiction "must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile". The importance of the principle of legal certainty as to the allocation of jurisdiction and the incompatibility of the forum non conveniens doctrine with the Brussels Convention (and therefore the Regulation) was also emphasised in Owusu v Jackson ( Case C-281/02) [2005] QB 801 at paras 37 to 46.
Mr Mead places particular reliance on...
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