Cook v Virgin Media Ltd: McNeil v Tesco plc
Court of Appeal upholds role of forum non conveniens in purely domestic cases.
On 14th December 2015 the Court of Appeal handed down judgment in the conjoined appeals of Cook v Virgin Media Ltd: McNeil v Tesco plc. The cases raised issues about the application of the doctrine of forum non conveniens where the competing jurisdictions were England and Wales, and Scotland. In particular, the Cout of Appeal considered whether the power to stay or strike out a claim under section 49 of the Civil Jurisdiction and Judgments Act 1982 was affected by the Brussels I Regulation (EC) 44/2001 and the decision in Owusu v Jackson (Case C-281-02).
Both claims were low value claims for damages for personal injuries arising from accidents in Scotland. The claims were issued in the Northampton County Court. Both claimants were domiciled in Scotland; the registered offices of both defendants were in England. In their defences, both defendants asserted that the Scottish courts were the correct courts to hear the claims, but neither defendant made any application to challenge jurisdiction under CPR 11.
The claims were allocated to Carlisle County Court, where the district judge made orders of his own initiative staying, and eventually striking out, the claims, on the basis that Scotland was the most convenient forum for the claims. While the claimants accepted that Scotland was the appropriate forum, they challenged the availability of the doctrine of forum non conveniens.
The question for the Court of Appeal was whether the English court had the power in a purely domestic case to stay or strike out a claim on the ground that the natural and more appropriate forum is Scotland. The appeals were dismissed.
The claimants sought to argue that Articles 2 and 24 of the Brussels Regulation had mandatory effect so that there could be no power to apply the forum non conveniens doctrine. This was rejected by the Court of Appeal which accepted the defendants’ submission that the Brussels Regulation did not apply at all, since the cases were solely internal to a member state. The requisite international element was not present so as to engage the Regulation.
The claimants also sought to argue that section 16 and schedule 4 of the 1982 Act should be interpreted in accordance with the principles laid down by the Court of Justice in relation to the Regulation, so that the doctrine of forum non conveniens should have no application in a domestic case. This too was rejected by the Court of Appeal, who held that the doctrine had been expressly preserved in domestic cases by section 49 of the 1982 Act.
The claimants’ last argument was that the court had no power to stay or strike out such claims unless an application under CPR 11 was made by the defendant. However, the Court of Appeal held that the court had the power to stay or strike out a claim on the ground of forum non conveniens of its own motion, as part of its wide general case management powers, without an application having been made by the defendant.
Finally, the Master of the Rolls gave some additional guidance about the exercise of forum non conveniens in domestic cases. There was no distinct ground of appeal that the court was wrong to strike out the claim in Cook where the defendant had admitted liability. Nevertheless in his view, striking out a claim on jurisdictional grounds after a defendant had admitted liability was undesirable and the better course in both cases would have been to stay the proceedings under CPR 3.1(2)(f).
The effect of the decision is to affirm that, in a purely domestic case – i.e. a case where there is no international element and the competing jurisdictions are England and Wales, Scotland, or Northern Ireland -, the court has power to stay a claim on the ground of forum non conveniens.. Further, such a power is available to the court, whether or not an application challenging jurisdiction is made by the defendant.
Lucy Wyles of 2 Temple Gardens appeared for the successful Respondent, Virgin Media Ltd, instructed by BLM.
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