Le Guevel-Mouly & Ors v AIG Europe Ltd

A defendant seeking a stay on forum non conveniens grounds must show that another available forum is clearly or distinctly more appropriate, particularly where the claimant’s English jurisdiction is founded as of right. The court must identify the issues likely to arise at trial before comparing the competing forums. Accident location and the location of evidence may carry little weight where liability is admitted and the dispute concerns quantification. A late application under CPR Part 11 may be admitted by extension of time, applying the relief-from-sanctions principles, where the default has caused no material prejudice. The application was refused because Scotland was not shown to be clearly preferable.

The claimants, domiciled in France, were injured in a road accident in Scotland while travelling in a car insured by the defendant. Liability was admitted, and the claims concerned damages under French law. Proceedings were issued in England because the defendant was registered there and had nominated an English address for service.

The defendant acknowledged service without contesting jurisdiction and later applied under CPR Part 11 for a stay in favour of Scotland. The application was 22 days late. The issues were whether time should be extended and, if so, whether Scotland was clearly the more appropriate forum.

1. Time for the defendant’s CPR Part 11 application was extended. The delay was substantial and the explanation unsatisfactory, but it had caused no material prejudice, had not delayed the proceedings or increased costs, and did not materially affect the court process. The court therefore applied the three-stage Mitchell/Denton exercise and granted the extension.

2. Failure to comply with CPR rule 11(4) did not amount to submission to the English jurisdiction in a case where English jurisdiction was accepted but its exercise was challenged on forum non conveniens grounds. CPR rule 11(5) principally addressed cases in which the existence of English jurisdiction was in issue. The defendant’s other procedural steps, including seeking extensions for the defence, did not constitute unequivocal recognition that England was the appropriate forum.

3. The court had power under Civil Jurisdiction and Judgments Act 1982, section 49, to stay proceedings on forum non conveniens grounds. Under Civil Procedure Rules 1998, Part 11 was the appropriate procedure where the relevant circumstances existed when proceedings were served. Resort to the inherent jurisdiction or general case-management powers should not be used simply to avoid that express procedure.

4. Applying Spiliada Maritime Corporation v Canulex Limited [1987] 1 AC 460, the defendant bore the burden of showing that Scotland was clearly or distinctly more appropriate. The court identified the live issues as the injuries, consequential losses and their assessment under French law. Liability was not in issue.

5. Scotland’s connection with the accident and some evidence was of limited weight in relation to those issues. There was no compelling evidence that a Scottish trial would materially assist in obtaining the relevant medical or quantum evidence. England also had a substantial connection through the defendant’s domicile. Scotland was not shown to be clearly preferable, and the stay application was refused.