Samsung Electronics Co Limited & Ors v LG Display Co Ltd & Anor

Relitigation of an issue may amount to an abuse of process where it would be manifestly unfair to a party or would bring the administration of justice into disrepute. Where the same parties have already litigated whether England is the appropriate forum, a later contribution claim raises the same issue, and no material distinction exists, permitting the issue to be reopened may offend finality and be disproportionate.

On the merits, England must be shown to be clearly the appropriate forum. It is insufficient that England is merely an appropriate, or marginally more appropriate, forum. The likelihood of related proceedings in another jurisdiction, creating duplication and a risk of inconsistent decisions, is a relevant factor.

The claimants, South Korean companies, sought a contribution from the defendants under the Civil Liability (Contribution) Act 1978 following settlement of an English follow-on claim arising from the European Commission’s decision concerning an LCD cartel.

The defendants challenged service out of the jurisdiction. They relied on an earlier decision involving the same parties and the same cartel, in which the Commercial Court held that England was not the proper forum for a related contribution claim. That decision was upheld on appeal. The issues were whether reopening the forum question would be an abuse of process and, alternatively, whether England was clearly the appropriate forum.

1. Abuse of process. The defendants’ jurisdictional challenge was allowed because it would be manifestly unfair to require them to relitigate the forum conveniens issue. The parties had already incurred substantial costs litigating the same issue, and no material distinction existed merely because the underlying follow-on claimant was different.
2. Relitigation would also bring the administration of justice into disrepute. The earlier proceedings and appeal had brought finality to the dispute between these parties as to the appropriate forum. Permitting the losing party to reargue the same issue would be disproportionate and unreasonable. The exceptional nature of the abuse jurisdiction, and the principle that relitigation alone is insufficient, did not alter that conclusion.
3. The court rejected the submission that the earlier decision involved a different approach to apportionment. A broad-brush assessment of relative responsibility, taking account of the seriousness of the respective faults and their causative relevance, was not novel.
4. Alternative merits decision. England was an appropriate forum, but South Korea was also appropriate and the factors connecting the dispute to South Korea were stronger. The claim concerned the relative responsibility of two South Korean companies for cartel conduct in Taiwan and South Korea. The location of witnesses and contemporaneous records, and the absence of material issues of English law, weighed against England.
5. The requirement that England be clearly the appropriate forum was not met. The likely commencement in South Korea of the related contribution claim arising from the earlier settlement made England unsuitable because of duplication and the risk of inconsistent decisions.

The ex parte permission to serve the proceedings out of the jurisdiction was set aside.

• Commercial Court: In a related contribution claim, Sir Michael Burton held that the courts of the Far East were the more appropriate forum: [2022] 1 All E.R. 717.
• Court of Appeal: The appeal was dismissed. The court held that no significant error of principle had been shown: [2023] 1 All E.R. 227.