Sylvie Klifa v Simon Slater & Anor

On an application for a stay on forum non conveniens grounds, a defendant served within England and Wales must show that another available forum is clearly or distinctly more appropriate. The court considers connecting factors, including the place of the tort, governing law, residence, witnesses, convenience, expense and enforcement.

Even where the foreign forum is more appropriate, a stay may be refused if special circumstances mean that justice requires the claim to proceed in England. Legitimate personal or juridical advantages may include enforcement in England and substantial costs properly incurred while the claimant had an effective right to sue here. English procedural law applies to evidence, while foreign substantive law governs the assessment of damages.

The claimant, resident in France, was injured in a skiing accident in France caused by the first defendant, who was insured by the second defendant. Liability was admitted. The remaining issue was the quantification of damages under French law.

The claim was issued in England and Wales shortly after the Judgments Regulation ceased to apply following Brexit. The defendants applied under the Civil Procedure Rules for a stay, arguing that France was the more appropriate forum. The central questions were whether France was clearly or distinctly more appropriate and, if so, whether justice nevertheless required the claim to continue in England.

1. Application dismissed. The defendants had not shown that France was clearly or distinctly more appropriate than England and Wales.
2. Applying Spiliada Maritime Corporation v Cansulex 1987 AC 460, the court considered the place of the accident, the claimant’s residence and losses, French governing law, witnesses and experts, the defendants’ English domicile, the location of enforcement and the parties’ procedural arrangements. France had significant connections, but liability was admitted and the remaining quantum dispute was relatively formulaic. The English courts were capable of applying French law.
3. The place of commission was a relevant starting point, but it did not create a conclusive presumption. Its weight depended on its relevance to the just determination of the particular dispute, applying VTB Capital v Nutritek International [2013] 2 AC 337.
4. Following Wall v Mutuelle de Poitiers [2014] 1 WLR 4263, English procedural and evidential rules would govern the proof of facts and expert evidence. The court would nevertheless assess damages under French law, including the practical guidance represented by the Dintilhac approach.
5. Alternatively, even assuming France was clearly the more appropriate forum, a stay would be refused at the justice stage. The claimant had incurred substantial costs under the English Personal Injuries Pre-Action Protocol while proceedings in England were protected by the Judgments Regulation. Those costs would largely be wasted and unrecoverable in France. Enforcement against the English defendants would also occur in England, whereas a French judgment would require registration under the Foreign Judgments (Reciprocal Enforcement) Act 1933.
6. Those matters constituted legitimate personal or juridical advantages and special circumstances within the principles stated in Spiliada Maritime Corporation v Cansulex 1987 AC 460. A holistic analysis produced the same result. Questions of permission to appeal, costs and the form of order were adjourned.