Cook & Ors v McNeil & Anor

The Brussels I regime does not govern proceedings which are wholly internal to the United Kingdom. In such proceedings, section 49 of the Civil Jurisdiction and Judgments Act 1982 preserves the English court’s power to stay, strike out or dismiss a claim on the ground that another United Kingdom jurisdiction is the more appropriate forum.

A defendant’s failure to challenge jurisdiction within CPR Part 11 may prevent that defendant from seeking such relief. It does not prevent the court from acting on its own initiative under its case-management powers. Where liability has been admitted, a stay will ordinarily be preferable to striking out the claim.

Two claimants domiciled in Scotland issued personal injury proceedings in England against companies domiciled in the United Kingdom. The accidents occurred in Scotland. Liability was admitted in one claim and disputed in the other.

The district judge stayed the proceedings of his own initiative and subsequently struck them out because Scotland was the more appropriate forum. His Honour Judge Peter Hughes QC dismissed the claimants’ first appeals.

The principal issue in the second appeals was whether an English court could invoke forum non conveniens in a wholly domestic dispute where the competing jurisdictions were England and Scotland. A further issue was whether the defendants’ failure to apply under CPR Part 11 prevented the court from exercising that power on its own initiative.

1. Both appeals dismissed unanimously. The proceedings were purely domestic. They concerned accidents in Scotland, claimants domiciled there and defendant companies domiciled within the United Kingdom. The Brussels I Regulation did not apply because the only jurisdictional question concerned the allocation of proceedings between two jurisdictions within one member state.

2. The requirement for an international element was consistent with Owusu v Jackson (Case C-281/02) [2005] QB 801 and Maletic v lastminute.com GmbH (Case C-478/12) [2014] QB 424. Color Drack GmbH v Lexx International Vertriebs GmbH (Case C-386/05) [2010] 1 WLR 1909 did not assist because it involved parties domiciled in different member states. Had the Regulation applied, articles 2 and 60 would have precluded forum non conveniens. Article 60 merely identifies the member state in which a company is domiciled.

3. Schedule 4 to the Civil Jurisdiction and Judgments Act 1982 is a modified domestic scheme rather than an exact reproduction of the Brussels regime. Section 16(3) requires regard to relevant European principles, but does not make European interpretations absolutely and unconditionally binding in a purely domestic case.

4. Section 49 expressly preserves the power to stay, strike out or dismiss proceedings for forum non conveniens. Exercising that power in a purely domestic case cannot be inconsistent with an international instrument which does not apply. Parliament therefore intended the power to remain available in disputes concerning allocation between the United Kingdom’s domestic jurisdictions.

5. The defendants had not applied under CPR Part 11 within the prescribed period. Assuming that this prevented them from later seeking forum non conveniens relief, it did not prevent the court from acting of its own initiative under its general case-management powers. Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA 1203 did not decide that separate question.

6. The district judge consequently had power to make the orders. Striking out on jurisdictional grounds after an admission of liability was undesirable; a stay under rule 3.1(2)(f) would have been preferable. The choice between striking out and staying was not, however, a distinct ground of appeal.

1. Court of Appeal (Civil Division): Both second appeals were dismissed by [2015] EWCA Civ 1287. The court upheld the conclusion that forum non conveniens remained available and that the district judge could act on his own initiative.

2. Carlisle Combined Court: His Honour Judge Peter Hughes QC dismissed the claimants’ first appeals on 11 February 2015. He upheld the district judge’s jurisdiction and case-management conclusions.

3. Carlisle County Court: District Judge Park stayed the proceedings of his own initiative and later struck out both claims because Scotland was the more appropriate forum. On 30 July 2014 he refused to set those orders aside.