As I said at the outset, I was persuaded to give permission to appeal because it appeared that a question of principle might arise. With the benefit of argument, I doubt whether that is so. However, this appeal will have served a useful purpose if it underlines the importance, in this context as elsewhere, of getting it right first time.

In Samsung Electronics Co. Ltd & Ors v LG Display Co Ltd & Anor [2022] EWCA Civ 423, the Court of Appeal considered a challenge to a decision that England was not the appropriate forum for the trial of contribution proceedings relating to a price-fixing cartel.

The judgment emphasises the difficulty that litigants will have in persuading an appeal court to overturn such decisions and the importance of ensuring that all relevant evidence and arguments are before the first instance judge.

In a useful passage, Males LJ summed up the test applied by the courts in forum disputes:

It is generally the case, when an issue about appropriate forum arises, that there will be a range of factors to be considered, some of which will point in favour of English jurisdiction, while others will be neutral or will point to the appropriateness of proceedings elsewhere. It is for the parties to identify the connecting factors on which they rely. It is then for the judge to decide how much weight to give to the various factors and to decide where the balance lies.

When seeking permission to serve abroad, it is important to remember that the burden is on the claimant to show that England is “clearly the appropriate forum for the claim.”

Accordingly it is not enough that the issue is finely balanced, or even that proceedings in England are marginally more appropriate than proceedings elsewhere. England must be clearly the appropriate forum.

That is an evaluative judgment without one right answer:

Often the question whether this test is satisfied will not have a single right answer. Views may reasonably differ as to the weight to be attributed to the different connecting factors relied on. The fact that this court might (or even would) have reached a different conclusion from the judge below is not in itself a reason to allow an appeal.

That means that an appeal court can only interfere with the judge’s evaluation in limited circumstances:

Rather, this court may only interfere if the judge has made “a significant error of principle, or a significant error in the considerations taken or not taken into account” (VTB Capital v Nutritek at [69]: similar formulations to much the same effect can also be found in other cases).

And it is important to bear in mind that the function of the appeal court is simply to review the decision of the court below:

The question is whether the judge has made a significant error having regard to the evidence adduced and the submissions advanced in the lower court. Just as the trial of an action is not a dress rehearsal for an appeal (see the well-known metaphor of Lord Justice Lewison in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114]), neither is an application to set aside an order for service out of the jurisdiction.

A litigant will therefore have to provide good reasons for an appeal court to consider fresh evidence or arguments that were not raised in the court below:

In general an appellant will not be permitted to rely on material which the judge was not invited to consider or to advance an entirely new basis for saying that the judge’s evaluation on the issue of appropriate forum was wrong. A judge can hardly be criticised for not taking something into account if he was never asked to do so.

The application of these principles can be clearly seen in the Court of Appeal’s rejection of the challenge to the forum decision.

For example, the appeal judges refused to consider an argument which had not been aired before the first instance judge:

I would therefore accept that if the argument developed before us had been made to the judge, that might have led to a different outcome. But it would be unfair and wrong to say that the judge had made a significant error of principle, or a significant error in failing to take the relevant paragraphs of the Commission Decision into account, when he was not asked to do so.

Ultimately, the point emphasised by the Court of Appeal is that the question is not whether a different judge may have reached a different conclusion, but rather whether the first instance judge made a significant error of principle:

It is therefore sufficient to say that it has not been shown that, on the basis of the arguments presented to him, the judge made any significant error of principle. It may be, even on the basis of those arguments, that other judges would have reached a different conclusion, but that is not the question. It is also possible that if the arguments made in this court had been advanced before the judge and supported by evidence, the outcome would have been different. But that is not the question either.

Bonus Point

For the purposes of the service gateways, is a claim under the Civil Liability (Contribution) Act 1978 a claim in tort, or restitution, or something else?

At first instance, the judge had held that such a claim could be characterised as a claim falling under the tort gateway (based on the tort underlying the main claim) or, possibly, as a claim falling under the restitution gateway.

Eagle-eyed readers of the judgment may note that the Court of Appeal commented (at [20]) that there was “no challenge to those conclusions.”

James Beeton Forum Conveniens

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