Forum non conveniens – tactical strategies?

Factual and Procedural History

In the recent case of Klifa v Slater the claimant was injured during a ski trip on 27 January 2018 in Albertville, France. The first defendant collided with the claimant, causing her injury. The second defendant is the first defendant’s insurer. The claimant is domiciled and resides in France. Both defendants reside in England and all parties instructed English Solicitors.

Liability was not in dispute, and it was accepted that the injury was the fault of the first defendant. The only issue was quantum, which was expected to exceed £200,000.

The procedural timeline was as follows:

•  20.04.18 - Letter of Claim was sent, and the English Pre-Action Protocol for Personal Injury Claims was correctly followed
• 31.12.20 - Brexit “Exit Day” following which Regulation 1215/2012 ceased to apply in England & Wales
• 14.01.21 - Claim Form was issued, proceedings commenced in England & Wales

Prior to Exit Day the claimant could have issued the claim in any jurisdiction permitted by Regulation 1215/2012, without challenge. It was irrelevant if it was the most appropriate forum as at that time, it was not possible for a defendant to bring an application for a stay on the grounds that it was “forum non conveniens” (Owusu v Jackson [2005] QB 801). However, the Claim Form was issued after the Exit Day and thus the defendants applied 29 January 2021, arguing that the French courts were the most appropriate forum in which the matter should be heard. The defendants included a number of relevant factors which essentially amounted to arguing that the matter was more “French” in nature.

The Two-Stage Test

Master Dagnall considered the defendant’s application by turning to the relevant precedents. He focused on the judgment of Lord Goff in Spiliada Maritime Corporation v Cansulex [1987] AC 460 and explained that this ruling established a two-stage test to be applied when considering the application of the principle.

Firstly, the defendant has to satisfy the court that France is the “distinctly” or “clearly” more appropriate forum in order for the court to potentially impose a stay. Secondly, even if the first stage is satisfied, a stay may still be refused once factors impacting the “ends of justice” are considered which includes whether (a) the claimant would be unable to achieve “substantial justice” if a stay is allowed or (b) whether there is some “legitimate personal or juridical advantage” and justice requires that a claimant should not be deprived of this advantage.   

Master Dagnall highlighted that he was not entirely sure if this was a two-stage test where the claimant has to fail at both stages for the defendant’s application to be successful. However, he concluded he came to the same eventual answer considering the stages individually and holistically.  

Judgment 

In applying the criteria to his judgment Master Dagnall considered the following factors:

• Where the tort and loss took place - France
• The fact that quantification of damages, regardless of forum, would be governed by French law
• The fact that enforcement, regardless of forum, would take place in England
• The claimant being of French nationality and domiciled in France, although spoke English
• The defendants being domiciled in England and having instructed English lawyers
• The need for an interpreter for any additional witnesses
• The medico-legal experts who were instructed in the pre action process being French

Although there was some merit to the defendant’s submissions that France was the most appropriate forum, Master Dagnall concluded that they failed to establish it was “distinctly” or “clearly” the most appropriate forum. Further, even if the defendant’s had established this, they had failed the second stage of the test, as achieving the ends of justice favoured the claim proceeding in England.

The Question of Costs

On the face of it, it seemed distinctly more inconvenient for the defendants for proceedings to be brought in France, for example the requirement to instruct local lawyers in Albertville and the geographical distance from their own domicile. Therefore, it appeared there was not much for the defendant to gain by the stay being granted, aside from potentially a cost benefit. This gave rise to one of the more interesting aspects of this detailed judgment, and why the defendants application failed on part (b) of the second stage of the Spiliada test, considering legitimate personal or juridical advantage for the claimant.

France has a significantly different procedural process to the UK. It is a codified system rather than precedent led with an inquisitorial role played by the Judge. A claimant’s ability to recover costs are limited and rarely exceed €5,000. This was always going to be much lower than the actual costs incurred by the claimant pre-action. Costs incurred in the English proceedings from inception to conclusion are much higher, due to a number of factors. These include adducing expert evidence, greater involvement by lawyers rather than the Judge and an emphasis on pre-action resolution, all of which take time and money.

The defendant’s application bore all the hallmarks of tactical game planning. They were seeking to use the impact of Brexit to their advantage, namely, to pay less costs on judgment, given that liability had already been admitted. The claimant on the other hand would have wasted significant costs if the stay was granted and proceedings had to be re-issued in France.

Master Dagnall acknowledged this tactical approach in his judgment and considered that the claimant should not be deprived of her ability to recover her higher costs incurred. He agreed this was a “legitimate personal and juridical advantage and a reason why the concept of “achieving the ends of justice” favours the claim being allowed to proceed in this jurisdiction.”

Comment

This judgment provides useful clarity on the correct jurisdiction post Brexit. Defendants should be cautious in considering an application for a stay on the grounds of “forum non conveniens”. To be successful they must have a clear or distinct reason for doing so. It is folly to suggest otherwise.

The facts and timing of the application made in this case was unusual in that they clashed with the UK’s departure from the EU. However, the judgment makes clear a cost saving alone is not enough to support an application for a defendant to successfully contest jurisdiction. Ultimately the passing of Exit Day made no practical difference to the outcome of the claim and did not affect the substantive rights of either parties.