Garcia v BIH (UK) Ltd

For service out under Practice Direction 6B, paragraph 3.1(3), the real issue which must be shown is between the claimant and the anchor defendant. The foreign defendant must be a necessary or proper party to that claim. The merits threshold is relatively low and is assessed by reference to whether there is a real prospect of success, without conducting a mini-trial. Although an English court will ordinarily retain jurisdiction where an English-domiciled anchor defendant is properly sued, the court retains a discretion concerning the foreign defendant. A stay may be ordered where the anchor proceedings have effectively ended and the foreign jurisdiction is plainly the more appropriate forum, having regard to the applicable law, language, witnesses, evidence and site inspections. The stay may be made subject to permission to apply if access to justice has not been addressed.

The claimant, a French professional diver, brought personal injury proceedings arising from an accident in Gabon against BIH (UK) Ltd, Total Gabon SA and Sigma Offshore SARL. BIH was an English company and the claimant’s employment contract contained an English governing-law and exclusive-jurisdiction clause. Total Gabon, a Gabonese company, challenged permission to serve the proceedings out of the jurisdiction and sought a stay.

Permission had been granted under Practice Direction 6B, paragraph 3.1(3), on the basis that the foreign defendants were necessary or proper parties to the claim against BIH. Default judgment had subsequently been entered against BIH and Sigma. The issues were whether the gateway requirements were satisfied and whether England remained the proper forum for the claim against Total Gabon.

1. Application of the service-out gateway. The relevant question under Practice Direction 6B, paragraph 3.1(3), was whether there was a real issue reasonably to be tried between the claimant and BIH, the defendant on whom the claim form was served otherwise than in reliance on the gateway. The separate question was whether Total Gabon was a necessary and proper party to that claim. The court assessed that question at the time of the application.
2. Merits threshold. Following the approach described in Lungowe v Vedanta Resources and KCM [2016] EWHC 975, the claimant had to show a serious issue to be tried, expressed in this context as a real prospect of success. The test was analogous to summary judgment under CPR Part 24. The court was not to conduct a mini-trial, but could assess the evidence and evidence reasonably expected at trial. The claimant’s factual case was generally assumed to be true unless demonstrably false.
3. The claimant had a real prospect of success against Total Gabon in contract if disclosure established a contractual nexus. There was also a real prospect of success in tort because Total Gabon operated the site, had responsibilities concerning risk assessment and a safe diving plan, and the pleaded failures and seriousness of the injury supported a viable case.
4. Forum. The effect of Owusu v Jackson [2005] QB 801, as applied in Lungowe v Vedanta Resources and KCM [2016] EWHC 975, was that the court could not decline jurisdiction over the properly commenced claim against the English-domiciled BIH. That did not determine the appropriate forum for the claim against Total Gabon. Applying the Spiliada principles, Gabon was the more appropriate forum for that claim. The relevant factors included the location of the accident and site, likely inspections, witnesses, evidence, language and applicable law.
5. The usual weight arising from continuing English proceedings was substantially reduced because default judgment against BIH meant that the English proceedings had effectively run their course. The claim against Total Gabon was therefore stayed. There had been no evidence or submissions on access to justice in Gabon, so the stay was made with permission to apply. Total Gabon’s application was otherwise refused.