Pierre Thomas Law has succeeded in establishing jurisdiction of the English court for their French client Mrs K, in the most recent forum non conveniens case in the High Court.
On 28 February 2022, Master Dagnall handed down his judgment in Klifa v Slater & Anor [2022] EWHC 427 (QB) (28 February 2022 (1130am)) (bailii.org).
The Claimant, a French lady domiciled and resident in France, had been injured in a skiing collision in France on 27 January 2018, caused by the First Defendant, a British national domiciled and resident in England & Wales, insured with the Second Defendant, an insurance company also domiciled in England & Wales
A letter of claim under the Pre-Action Protocol for Personal Injury claims was sent on 20 April 2018 and the parties followed the protocol for over 2.5 years. The Claimant was represented by Pierre Thomas Law, an English firm of solicitors with strong connections to France and a secondary practice in France, through their dual qualified lawyer Maud Lepez, Solicitor of England & Wales and Avocate at the Paris Bar. The Defendants were represented, from the outset, by English solicitors.
The Claimant started court proceedings in the High Court of Justice of England & Wales on 14 January 2021, i.e. after the expiry of the transition period for the UK’s withdrawal from the European Union. Jurisdiction of the English court existed ‘as of right’, under CPR Part 6 section II and Practice Direction 6A, in so far as the claim form was served on both Defendants in the jurisdiction (and in fact on their solicitors who had instructions to accept service of proceedings).
Nevertheless, the Defendants indicated their intention to dispute the court’s jurisdiction and filed an Application Notice on 12 February 2021, which was listed for a hearing before Master Dagnall on 5 November 2021. Bernard Doherty of 39 Essex Chambers was instructed as counsel for the Claimant.
The Defendants were asking the Court, in their application, to decide that another forum (i.e. France) was more appropriate than England & Wales and to grant a stay of proceedings, on the basis of the doctrine of Forum non conveniens.
In his judgment, Master Dagnall referred to relevant extracts of the essential precedent on Forum non conveniens, i.e. the judgment of Lord Goff in Spiliada Maritime Corporation v Cansulex 1987 AC 460; he also referred to VTB Capital v Nutritek International [2013] 2 AC 337; International Credit v Adham [1999] I.L.Pr 302 and Wall v Mutuelle de Poitiers [2014] 1 WLR 4263 (Court of Appeal).
At paragraph 18 of his judgment, he set out that:
i) 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
ii) This will involve the court considering the factors pointing in both directions including convenience and expense (including availability of witnesses), the governing law, and the residence and places of business of the parties
iii) Even if France is the more appropriate forum then a stay may still be refused after considering other “circumstances” being factors relating to the achieving of “the ends of justice” (but also the interests of the parties) and asking (a) whether they mean that the Claimant will not obtain “substantial justice” in France, a test which requires something more than there simply being different approaches to damages or procedure but where the system will still afford a procedural process and substantive outcome which is a reasonable one (even though different from those adopted in this jurisdiction) Or (b) whether they involve some particular factor(s), being a legitimate personal or juridical advantage, such as a limitation advantage or security for costs existing in this forum (and which is recognised by this forum as being “legitimate” and which will generally be so if it is part of the law of this forum), of which justice “requires” (and again a mere difference in approach as to damages or procedure, as long as the other approach is a reasonable one, will not be sufficient to “require”) that a claimant (who may have had to have acted reasonably for this to be the case) should not be deprived
iv) I am not entirely sure whether this is strictly a two-stage test where the Claimant has to fail at both stages (although it is clear that the burden of satisfying the court is on the Claimant with regard to the second stage) for the stay to be granted rather than a two-stage analysis with an holistic consideration of all the matters together. However, that is unlikely to (and in the circumstances of this case, I hold does not) result in a different outcome in practice, and I have come to the same eventual conclusion having applied both approaches separately.
Master Dagnall thus examined the relevant ‘factors’ put forward by the Defendants in favour of the French forum, as well as the opposite factors presented by the Claimant in favour of the English and Welsh forum.
With regards to the appreciation of ‘the most appropriate forum’ (para 39 onwards), he considered the following factors:
Interestingly, he considered that the fact that a ‘subsequent deterioration claim’ (i.e. an aggravation claim under French law) may be open was not a relevant factor, as such claim would “(in whichever forum) be entirely separate” from the current proceedings.
Master Dagnall went on to conclude that, although the Defendants had shown that France was ‘the most appropriate forum’ they had failed to show that it “was “distinctly” or “clearly” the more appropriate forum, which is a higher test for them to satisfy”, taking into account the factors pointing out to England & Wales being the appropriate forum: (i) the actual location and language of the Defendants, (ii) the fact that enforcement would take place in England and (iii) the presence of the parties’ lawyers in England and the fact that they followed the Pre-Action Protocol for a substantial period, and noting that the Courts of England & Wales being perfectly capable of dealing with a French law quantum matter.
Furthermore, and in any event, Master Dagnall considered the second stage of the test (i.e. if France had been distinctly or clearly the more appropriate forum), that is “whether justice require[d], and including because of the existence of legitimate personal or juridical advantages, but in the context of the interests of all of the parties, a stay to be refused and matter to proceed in this forum”.
The matters he considered essential at that stage were:
He also pointed out that the Defendants’ approach was ‘tactical’ in the sense that there was no advantage to them to proceed in a foreign and geographically far away court (save perhaps some costs saving).
Before concluding that: “this is a situation where justice does not require the matter, properly commenced against and served upon these English Defendants, to be stayed in [favour of] France but rather the opposite essentially for the reasons given above”.
The Defendants’ application will now be dismissed, and the claim will proceed in England & Wales (subject to any appeal by the Defendants).
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