Service, jurisdiction and forum conveniens post Brexit

The High Court has handed down an interesting judgment on service, jurisdiction and forum conveniens post Brexit. In this post, Alex Carington considers the decision of Master McCloud in Charlton v Deffert [2022] EWHC 2378 (KB) in which he successfully defended a jurisdiction challenge by the Defendant.

A copy of the judgment can be found on Westlaw here.

The claim concerns a road traffic accident in France. The Claimant’s case is that he was cycling in the mountains near Morzine and as he and his son were cycling around a bend, the Defendant drove his car around the corner in the opposite direction at speed and collided with the Claimant causing significant injuries which will permanently affect his work and personal life.  The Defendant is a French national domiciled in France. French law applies, in particular “loi Badinter” which in essence means the Defendant car driver will be considered liable for the accident unless the Defendant can establish the accident was caused by the Claimant’s inexcusable fault.

Prior to proceedings being issued and served, the Claimant’s solicitor corresponded with an agent for the Defendant’s insurer about limitation and jurisdiction. Consequently, the agent nominated solicitors in England and Wales to accept proceedings and those solicitors confirmed the nomination in writing.

Proceedings were duly served on the offices of the Defendant’s nominated solicitors, at which point the Defendant challenged jurisdiction in its Acknowledgement of Service and applied to set aside service on the basis that it was defective due to the Claimant failing to obtain permission to serve out of the jurisdiction; alternatively, that the Claimant failed to satisfy the appropriate test for jurisdiction, namely:

1. There was a good arguable case that the claim falls within one of the gateways in the CPR PD 6B, para 3.1.
2. There was a serious issued to be tried on the merits; and
3. That England is the appropriate forum for trial and the court ought to exercise its discretion to permit service outside of the jurisdiction.

At the application hearing, the Defendant expanded on this and argued that, whilst not explicit, it was necessary to satisfy this test even where solicitors within the jurisdiction had been nominated in accordance with CPR r. 6.7 as the Defendant was still outside of the jurisdiction. The Defendant raised a further argument that the Court should exercise its discretion to refuse jurisdiction in any event (which had not be explicitly set out in its application).

The Claimant resisted the application to argue that CPR r. 6.7 was clear as to when serviced on nominated solicitors was to take place and there was no mention as to permission being required where a defendant was outside of the jurisdiction. If such a test was intended, it would be explicit within the rule. Moreover, once a defendant nominated solicitors in accordance with CPR r. 6.7, service on that solicitor was mandatory and so a test for permission in those circumstance would be contrary to the mandatory nature of CPR r. 6.7. The Claimant also argued that there had been no express application for the Court to exercise its discretion to refuse jurisdiction and so the argument should not be allowed.

Master McCloud gave an extempore judgment dismissing the Defendant’s application on the basis of defective service due to a lack of permission and found that service had been validly effected under CPR r. 6.7.

In respect of the more general application as to the Court’s discretion to refuse jurisdiction (and the circumstances in which to do so), Master McCloud considered this raised interesting questions post Brexit and so asked the representative for both parties to provide further written submissions on the underlying common law basis as to forum conveniens.

In further submissions, the Claimant argued in summary:

1. The agreement to accept service without any qualification (which the Defendant would have been at liberty to specify) amounted to a submission to the jurisdiction.
2. Alternatively, service pursuant to the acceptance of service meant that the claim was commenced “as of right” and the appropriate test was that set out in Spiliada Maritime Corp v Consulex Ltd [1987] AC 460 where proceedings were commenced as of right. Applying that test, the Defendant had failed to establish that the Court should exercise its discretion to refuse jurisdiction.

The Defendant argued in summary that the case should be treated as analogous to a “service out” case and the applicable test in Spiliada applied requiring the Claimant to prove that (1) England is the appropriate forum and that this is clearly so and (2) the court has to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice. 

Master McCloud examined the underlying basis of the Court’s inherent jurisdiction and concluded that:

1. The agreement to service did not amount to a submission to jurisdiction.
2. Service in accordance with CPR r. 6.7 amounted to service as of right and so the appropriate forum conveniens test was for the defendant to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum (Spiliada [477]). If there is a forum which is prima facie more appropriate, the burden then shifts to the claimant to show that there are circumstances by reason of which justice requires that a stay should nevertheless not be granted

Applying the appropriate test to the present case, Master McCloud acknowledged that Brexit had led to a change in position so that such claims may not be most appropriately heard here. Further, forum conveniens principles must still be applied robustly.

In this instance, Master McCloud considered the following factors relevant to determining that the Defendant had to satisfied the relevant test:

1. The quantum witnesses were all in the jurisdiction.
2. The largest element of the case concerned damage in the jurisdiction.
3. There would be significantly more documents on quantum that would need translating into French than the limited liability documents needing to be translating into English.
4. The French court would have to understand the English tax system, prospects of treatment in England and how the Claimant’s English business operates.
5. It did not appear to be a complex case in legal terms.
6. There were no independent French witnesses on liability.

Comment

This is an interesting decision setting down the appropriate forum conveniens test where the solicitors have been nominated by the Defendant in the jurisdiction as well as the application of the test to the circumstances of this case (which are likely to be common to many other cases).

It could be thought that the decision may simply lead to defendants not nominating solicitors in the jurisdiction. However, nothing prevented the defendant from specifying conditions for agreeing to nominate solicitors in the jurisdiction such that a claimant would need to satisfy the service out test and this could be done in the future.