Booth v Phillips & Ors

At the jurisdiction stage, a claim raises a real issue if it is genuine rather than fanciful. The court should not conduct a detailed merits assessment or decide whether the claim is likely to succeed.

For service out in tort, damage in CPR 6.20(8)(a) means harm sustained by the claimant, whether physical or economic. It is sufficient that some damage is sustained within the jurisdiction; the damage completing the tort need not have occurred there.

Where all claims can conveniently be heard together in England, and the alternative forum has not been shown to have jurisdiction over every defendant, that may be a powerful reason for retaining the proceedings. The applicant seeking a stay must show that the alternative forum is clearly or distinctly more appropriate.

The claimant, the widow and executrix of Clifford Booth, brought negligence claims against the master of the MV MAYSORA and negligence and contractual claims against the vessel’s owners and managers. Mr Booth had died in Egypt while working on a defective loading-ramp and winch mechanism.

The master applied for a stay in favour of Jordan. The other defendants challenged permission to serve proceedings out of the jurisdiction under CPR 6.20. The issues were whether the claim against the master raised a real issue, whether the employment contract was governed by English law, whether damage had been sustained in England, and whether England or Jordan was the appropriate forum.

1. Real issue. CPR 6.20(3) required a real issue between the claimant and the defendant already served, which it was reasonable for the court to try. A real issue was genuine rather than fanciful. At this interlocutory stage the court should not analyse the evidence in detail or decide whether the claim was likely to succeed. The pleaded negligence case against the master, supported by evidence from the inquest, met that threshold. The owners and managers accepted that they were necessary or proper parties if that conclusion was reached.
2. Governing law. Under article 6 of the Rome Convention, given effect by the Contracts (Applicable Law) Act 1990, the employment contract was prima facie governed by Jordanian law because the employee was engaged through a business there. The claimant did not establish a good arguable case that the contract was more closely connected with England. The proposed English connections were insufficient and were balanced by the employers’ Jordanian business connection.
3. Damage within the jurisdiction. The ordinary and natural meaning of CPR 6.20(8)(a) was preferred. “Damage” meant harm sustained by the claimant, including physical or economic harm, and some damage within the jurisdiction was sufficient. The widow’s loss of financial dependency under section 3 of the Fatal Accidents Act 1976, and funeral expenses incurred in England by the estate, therefore constituted damage sustained within the jurisdiction. The court also considered Metal und Rohsoff AG v Donaldson Lukin & Jenrette Inc [1990] 1 QB 391 and foreign authorities supporting that construction.
4. Forum. The claims against all defendants should, if possible, be heard together. There was no doubt that all claims could be heard in England, whereas the defendants had given no formal undertakings ensuring that all claims could be heard in Jordan. That was a powerful factor in favour of England. The other factors were neutral, marginal, or insubstantial. Jordan was not shown to be clearly or distinctly the more appropriate forum.
5. The defendants’ applications were dismissed.