Stuart Lunn v Antarctic Logistics Centre International (Pty) Limited

On an application to serve proceedings on a foreign defendant, the claimant must establish a serious issue to be tried, a good arguable case within a jurisdictional gateway, and that England and Wales is clearly the appropriate forum.

At the jurisdiction stage, English law may apply by default where neither party advances a well-founded case that foreign law applies. Alternatively, the presumption of similarity may be used where it is fair and reasonable to assume that the relevant foreign law is materially similar to English law, particularly where only a real prospect of success must be shown.

Forum conveniens involves a structured assessment of the interests of the parties and the ends of justice, including connecting factors, applicable law, limitation and witness convenience.

The claimant, a British citizen and self-employed aircraft engineer, claimed damages for injuries sustained at an Antarctic airstrip operated by the South African defendant. He alleged that the defendant negligently allowed an aircraft to taxi too close to the aircraft from which he was descending, causing mobile stairs to topple.

The defendant challenged permission previously granted to serve the proceedings in South Africa under CPR Part 11. The remaining issues were whether the claim had a real prospect of success, whether England and Wales was the proper place to try it, what law should be applied at this stage, and whether there had been material non-disclosure.

1. The defendant’s application under CPR Part 11 was dismissed. Permission to serve the proceedings out of the jurisdiction remained in force.

2. The claimant satisfied the merits test. The pleaded allegation that the defendant negligently failed to keep the taxiing aircraft at a safe distance from the claimant’s aircraft raised a serious issue to be tried and had a real prospect of success. Disputes concerning the weather, positioning of the stairs, and what the defendant’s staff knew or ought to have known were matters for trial.

3. The court applied the distinction drawn in Brownlie II between the default rule and the presumption of similarity. The default rule is procedural: where neither party advances a well-founded case that foreign law applies, the court may apply English law in its own right. The presumption of similarity is evidential and concerns the likely content of foreign law.

4. On the evidence, South African law was not applicable under Article 4(2) of Rome II because the claimant and defendant did not have habitual residence in the same country. The claimant’s itinerant work did not establish South Africa as his principal place of business.

5. Because no foreign law had been established as applicable, English law was applied by default at the jurisdiction stage. Alternatively, the presumption of similarity was appropriate. The pleaded tort involved broad duties of reasonable care, and the interlocutory threshold required only a real prospect of success.

6. England and Wales was clearly and distinctly the appropriate forum. The principal distinguishing factor was witness convenience: most identified witnesses were in England or could readily attend there, while the defendant had not identified witnesses who could not give evidence in England. The possible limitation consequences of restarting proceedings abroad also supported retaining the claim in England.

7. The further allegations of material non-disclosure had no merit. The claimant had not materially or culpably failed to disclose matters concerning the contract, Antarctic sovereignty issues, or his principal place of business.

First-instance jurisdiction decision. The judgment records earlier procedural decisions by Master Thornett, including [2023] EWHC 2856 (KB) and [2024] EWHC 169 (KB). No appeal had been made against the first decision, and permission to appeal the later procedural order was refused.