Owusu v Jackson & Ors

An appellate court should intervene only rarely in a discretionary decision identifying the appropriate forum. A procedural error in an order permitting service outside the jurisdiction may be corrected under the court’s general power where the error was the court’s and caused no prejudice.

A reserved judgment must be formally handed down in public. Time for appealing ordinarily runs from the communication of the decision, rather than the later drawing up of the order.

The court made no final ruling on whether article 2 of the Brussels Convention prevents an English court from staying proceedings against an English-domiciled defendant in favour of a non-contracting state. That unresolved question required a preliminary ruling from the Court of Justice.

The claimant, who was domiciled in England, suffered catastrophic injury when he dived into the sea while staying at a Jamaican holiday villa. He sued the English-domiciled provider of the villa in contract and several Jamaican companies in tort. The defendants contended that Jamaica was the natural and appropriate forum.

Judge Bentley QC dismissed the English defendant’s application for a stay. He considered that article 2 of the Brussels Convention prevented such a stay. He also refused the Jamaican defendants’ jurisdictional applications because parallel proceedings could produce inconsistent findings.

The first, third, fourth and sixth defendants appealed. The central Community-law issue was whether article 2 permitted an English court to decline jurisdiction over an English-domiciled defendant in favour of the courts of a non-contracting state where no other contracting state was involved.

1. Preliminary reference made; final determination deferred. Brooke LJ delivered the judgment of the court. A final judgment on the appeals could not be given without authoritative guidance on article 2 of the Brussels Convention. The court therefore referred questions to the Court of Justice under article 2(2) of the 1971 Protocol. It asked whether article 2 precluded the exercise of the domestic discretion to decline jurisdiction in favour of a non-contracting state where no other contracting state had jurisdiction or any connecting factor.

2. The judge had power to remedy the deputy district judge’s omission to include the timetable required by CPR rule 6.21(4). The omission was an error of the court and caused the Jamaican defendants no prejudice. CPR rule 3.10 supplied ample corrective power.

3. The judge’s conclusion that Jamaica would otherwise have been the more appropriate forum fell within the broad ambit of his discretion. Following Spiliada Maritime Corporation v Consulex Ltd [1987] 1 AC 460, appellate intervention in decisions of that kind should be rare. The court did not need to determine whether the claimant’s contract with the English defendant was governed by English or Jamaican law.

4. The appeals concerning the joinder and service of the Jamaican defendants were deferred. Once the preliminary ruling was received, the court would decide whether the claim against the English defendant presented a real issue which it was reasonable to try and, if so, whether the Jamaican defendants were necessary or proper parties. A real issue requires a real prospect of success; a real prospect is contrasted with one that is fanciful.

5. The Court of Justice would not be asked to interpret CPR rule 6.20. Interpretation of that national procedural rule remained for the English court after receipt of authoritative guidance on the Convention.

6. Although no ruling was required because time had been extended, the court explained that a reserved judgment must be formally handed down in open court. Sending a judgment and order to the parties does not dispense with that formality. Time for appealing runs from communication of the decision, not from the later perfection of the order.

The costs of the appeal up to the reference were reserved.

1. Court of Appeal (Civil Division): made a preliminary reference to the Court of Justice, upheld the judge’s procedural ruling under CPR rule 3.10 and deferred final determination of the jurisdictional appeals.
2. High Court, Queen’s Bench Division: Judge Bentley QC, sitting as a deputy High Court judge, dismissed the English defendant’s stay application and the Jamaican defendants’ applications challenging service and the exercise of jurisdiction.