We previously wrote about how, following the Supreme Court’s approach in Brownlie II, the likelihood is that “proper forum” disputes will form a major battleground in future international injury litigation.
It seems that the first wave of such cases is already arriving, as illustrated by the recent failure of a forum challenge in Klifa v Slater & Anor [2022] EWHC 427 (QB).
This longer article takes a detailed look at a few of the key features of forum disputes in cross-border personal injury cases. A health warning: if you are allergic to footnotes then I suggest stopping here.
(a) Generally
The court will not give permission to serve abroad under the CPR 6BPD gateways unless also satisfied that England and Wales is the proper place in which to bring the claim (the “forum conveniens”).[1]
As Lord Collins said in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7 at [88], the task of the court is “to identify the forum in which the case[2] can suitably be tried for the interests of all the parties[3] and for the ends of justice”.[4] The question is not one of mere practical convenience but rather of appropriateness.[5] The strength of the case on the merits is not relevant to this question.[6]
If a party wishes to rely on a factor in persuading the court to exercise its discretion one way or another, the evidential burden is on that party to prove it. In Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) at [34], the judge used the thematic headings of “a) personal connections; b) factual connections; c) evidence/convenience/expense; d) applicable law and e) the “overall shape of the litigation”.”
I will loosely (but not completely) follow those.
(b) Factual connections
In cases in tort, the place where the accident happened represents a starting point.[7] However, the location of the accident assumes less importance in cases where liability is admitted:
Here there is no dispute as to liability and therefore the geographical location of the accident (and associated effects on evidence and law) is not of direct relevance. Thus the weight of this factor is much less than it would otherwise have been although it is still relevant in view of its consequences as to quantum and in particular the law governing assessment of quantum.[8]
(c) Personal connections
The location of the parties is important.[9] If the claimant’s losses were and will be sustained in a foreign jurisdiction, then this will support a contention that the foreign jurisdiction is more appropriate.[10] But location assumes less importance if a foreign-domiciled claimant is willing to travel to England to engage with the English proceedings (especially if coming to London is no less difficult than attending the relevant foreign court).[11]
A defendant being domiciled overseas is clearly significant, although not as much as it once was.[12] If an English claimant is unwilling to travel to the natural forum, the question is whether he has well-founded reasons why he will not go there.[13] The fact that the defendant is “based in England and deals in English” is relevant, especially if it has instructed solicitors who have been engaging with an English Pre-Action Protocol process.[14]
(d) Evidence
The parties may rely on factors including the availability[15] and compellability[16] of witnesses of fact. The availability of documentary evidence will probably have less importance in modern cases where the documents are generally available electronically.[17]
Language is important. In cases which depend on analysis of documents, “it is far better to be working in the native language than from translations.”[18] The reason is that nuances in meaning can be lost in translation:
In such cases the outcome can depend on a judge having to make a determination between different nuances of meaning. That can involve a difficult exercise of judicial assessment even when the judge is a speaker of the language used. A judge working from a translation of notes (and in this case an English judge is unlikely to be familiar even with the script in which the notes are written) is in a markedly worse position to decide on a party’s contention as to what was meant by a particular abbreviation than a judge who is a speaker of the language in question and who can make an assessment for him or herself of the credibility of a particular account of what was meant by a note.[19]
There are also concerns about efficiency, particularly in relation to witness evidence:
Of course the court can take evidence through interpreters, and indeed remotely through interpreters. It is well used to doing so. But there is no doubt that (leaving aside the efficiency aspect – interpreted evidence inevitably taking longer and therefore being less efficient) interpreted evidence is less easy to assess than evidence in a person’s first language. To the limited extent that demeanour can properly come into the equation it becomes much more difficult to judge when the words accompanying it come later and in another person’s voice. This is a point of some significance when serious allegations of dishonesty are in play.[20]
Another problem that arises in relation to witness evidence is the increased scope for disruption of flow and misunderstanding of answers:
There are also greater problems in testing a witness’s evidence as robustly when they are giving evidence through an interpreter. The flow of evidence is disrupted; it becomes less easy to know when a lengthy answer can be interrupted; and there is ample scope for voluntary and involuntary confusion on the witness’s part as to understanding the question.[21]
On the other hand, if the relevant party is unlikely to have foreign witnesses, or if their involvement will be “marginal”, then the significance of this factor is clearly decreased. If it later turned out that such evidence was sought to be adduced, then that might lead to the court either refusing permission for it or holding that there was a material change in circumstances justifying a fresh application for a stay.[22]
(e) Applicable law
The applicable law is relevant: “it is generally preferable, other things being equal, that a case should be tried in the country whose law applies”.[23] That is particularly so if the issues are complex and ought to be the subject of appeals.[24] It will be less compelling as a factor if the foreign law is similar to English law.[25]
This factor also has less significance in straightforward quantum assessments, especially where the English courts have carried this out as a matter of course. That is especially the case where the foreign system uses a formulaic system (like the French Dintilhac). However, a significant dispute about the content of the foreign law which requires resolution by foreign law experts may mean that the applicable law assumes greater importance.[26]
(f) Achieving the ends of justice
English procedural provisions and limitation periods conferring advantages on particular parties are generally irrelevant.[27] In Connelly v RTZ Corpn [1998] AC 854, 872–873 HL, Lord Goff said:
From the discussion which followed, a general principle may be derived, which is that, if a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum.
A party facing a potential time-bar overseas would be well advised to commence protective proceedings there.[28] However, English procedural advantages such as costs[29] and availability of funding under conditional fee agreements[30] or legal aid[31] may be relevant if they affect whether the case can actually be brought at all. Similarly, the relative enforceability of a foreign judgment is important.[32] If enforcement of a foreign judgment in England would lead to extra costs and delay, then this is a relevant factor.[33]
Where there is a real risk[34] that justice will not be obtained in the foreign court, the English court may determine that England is the proper place to bring the claim.[35] The bar for this inquiry should not be set too low.[36] A relevant factor in this respect is the availability of legal teams with expertise in the particular type of dispute.[37] The lack of expertise of the relevant tribunal is less likely to be a deciding factor.[38]
(g) Parallel proceedings
If litigation in a foreign forum has already reached an advanced stage, then this may be a further consideration.[39] English law does not have rigid rules or a formal doctrine of litispendence; the normal forum principles apply when considering the effect of litigation abroad.[40] It is a relevant but not necessarily decisive factor.[41] Usually, a claimant will only be allowed to sue the same defendant in one jurisdiction.[42]
In Nokia Technologies OY & Nor v Oneplus Technology (Shenzhen) Co., Ltd & Ors (Rev1) [2021] EWHC 2952 (Pat) at [120], HHJ Hacon summed up the position:
By contrast, when considering a stay as part of case management an English court must reach a conclusion on the balance of justice, with particular reference to the saving of costs and the convenience of the parties (see Reichhold Norway and the Supreme Court’s judgment in Conversant above). The balance of justice will largely or entirely turn on the balance of prejudice to the parties likely to be caused by, respectively, a stay or no stay on the facts of this case, that is to say balance of factors which are of practical relevance to the parties.
[1] CPR r. 6.37(3).
[2] This is to be understood as the dispute between the parties rather than an overly formalised analysis of the “case”: Unwired Planet International Ltd & Anor v Huawei Technologies (UK) Co Ltd & Anor [2020] UKSC 37 at [94]; Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 at [71].
[3] This was emphasised in Vedanta Resources Plc v Lungowe [2019] UKSC 20; see also E D & F Man Capital Markets Ltd v Come Harvest Holdings Ltd [2019] EWHC 1661 (Comm) at [42].
[4] See also Lord Goff in Spiliada Maritime Corpn v Cansulex Ltd, The Spiliada [1987] AC 460, 476.
[5] Spiliada Maritime Corpn v Cansulex Ltd, The Spiliada [1987] AC 460, 474–475.
[6] Seaconsar Far East Ltd v Bank Markazi Iran [1994] 1 A.C. 438, 456.
[7] Berezovsky v Michaels [2000] 1 WLR 1004; per Lord Mance in VTB Capital plc v Nutritek International Corpn [2013] UKSC 5 at [51]; Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) at [41].
[8] Klifa v Slater & Anor [2022] EWHC 427 (QB) at [40(i)].
[9] This will have less relevance if the domicile is just a tax haven: Spiliada Maritime Corpn v Cansulex Ltd, The Spiliada [1987] AC 460, 486.
[10] Klifa v Slater & Anor [2022] EWHC 427 (QB) at [40(ii)].
[11] Klifa v Slater & Anor [2022] EWHC 427 (QB) at [40(iv)].
[12] Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) at [36].
[13] Cherney v Deripaska (No. 2) [2009] EWCA Civ 849 per Waller LJ at [27]; Nimer v United Al Saqer Group LLC & Ors [2021] EWHC 50 (QB).
[14] Klifa v Slater & Anor [2022] EWHC 427 (QB) at [40(viii)].
[15] See, in particular, Lord Mance in VTB Capital plc v Nutritek International Corpn [2013] UKSC 5 at [62].
[16] Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391, 485 per Slade LJ.
[17] Jefferies International Ltd & Anor v Cantor Fitzgerald & Co & Ors [2020] EWHC 1381 (QB) at [40]; Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) at [51].
[18] VTB Commodities Trading DAC v JSC Antipinsky Refinery & Ors [2021] EWHC 1758 (Comm) at [233].
[19] Mousavi-Khalkali v Abrishamchi [2019] EWHC 2364 (Ch) by HHJ Eyre QC at [88].
[20] VTB Commodities Trading DAC v JSC Antipinsky Refinery & Ors [2021] EWHC 1758 (Comm) at [236]–[237].
[21] VTB Commodities Trading DAC v JSC Antipinsky Refinery & Ors [2021] EWHC 1758 (Comm) at [236]–[237].
[22] Klifa v Slater & Anor [2022] EWHC 427 (QB) at [40(v)].
[23] Per Lord Mance in VTB Capital plc v Nutritek International Corpn [2013] UKSC 5 at [45].
[24] PJSC Bank “Finance And Credit” & Anor v Valentynovich & Ors [2021] EWHC 2522 (Ch) at [141].
[25] Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) at [56].
[26] Klifa v Slater & Anor [2022] EWHC 427 (QB) at [40(iii)].
[27] Trendtex Trading Corp v Credit Suisse [1982] AC 679; Spiliada Maritime Corpn v Cansulex Ltd, The Spiliada [1987] AC 460, 482–484.
[28] “Commencing protective proceedings to avoid the time bar could hardly be described as abusive parallel proceedings”: PJSC Bank “Finance And Credit” & Anor v Valentynovich & Ors [2021] EWHC 2522 (Ch) at [164].
[29] Roneleigh v. MII Exports [1989] 1 WLR 619, 623; see also The Vishva Ajay; The Oinoussin Pride [1991] 1 Lloyd’s Rep 126; The Nile Rhapsody [1994] 1 Lloyd’s Rep 382; The Al Battani [1993] 2 Lloyd’s Rep 219; Agrafax Public Relations Ltd v. United Scottish Society Inc [1995] ILPr 753.
[30] Vedanta Resources Plc v Lungowe [2019] UKSC 20; Lubbe v Cape Plc [2000] 1 WLR 1545.
[31] Connelly v RTZ Corpn [1998] AC 854, 874.
[32] PJSC National Bank Trust & Anor v Mints & Ors [2021] EWHC 692 (Comm) at [67]; PJSC Bank “Finance And Credit” & Anor v Valentynovich & Ors [2021] EWHC 2522 (Ch) at [145].
[33] Klifa v Slater & Anor [2022] EWHC 427 (QB) at [40(ix)].
[34] Not a probability: AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7 at [94]; Mousavi-Khalkali v Abrishamchi & Anor [2020] EWCA Civ 1493 at [56].
[35] See, for example, Connelly v RTZ Corpn [1998] AC 854, HL; Rishad Moloobhoy v Shams Mohamed Kanani [2012] EWHC 1670 (Comm) where the choice was between proceedings in UK and Dubai; AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7 where the choice was between the courts of the Isle of Man and those of Kyrgyzstan.
[36] Dynasty Company for Oil and Gas Trading Ltd v Kurdistan Regional Government of Iraq & Anor [2021] EWHC 952 (Comm) at [176]; Manek v IIFL Wealth (UK) Limited [2021] EWCA Civ 625 at [65].
[37] Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391, 486; Spiliada Maritime Corpn v Cansulex Ltd, The Spiliada [1987] AC 460, 485.
[38] PJSC Bank “Finance And Credit” & Anor v Valentynovich & Ors [2021] EWHC 2522 (Ch) at [147].
[39] Pfizer v Dainippon Sumitomo Pharma Co Ltd [2006] EWHC 1424 (Ch) at [34]. But it will not necessarily be conclusive: Stylianou v Toyoshima [2013] EWHC 2188 (QB).
[40] De Dampierre v De Dampierre [1988] A.C. 92, 108.
[41] Meadows Indemnity Co Ltd v Insurance Corp of Ireland Plc [1989] 2 Lloyd’s Rep. 298 (CA); E.I. Du Pont de Nemours v. Agnew (No 2) [1988] 2 Lloyd’s Rep 240.
[42] Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All E.R. 65, affirmed February 23, 1990 (CA, unreported) See also Racy v Hawila [2004] EWCA Civ 209; Al-Bassam v Al-Bassam [2004] EWCA Civ 857.
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