Mohammed Ibrahim v AXA Belgium

Relief from sanction for a late forum non conveniens application depends on the Denton principles. A 30-day breach of the 14-day time limit in CPR 11.1(4) may be serious and significant, particularly where the defendant had ample notice and gives no good reason for the delay.

Under Spiliada, a stay should be granted only where the defendant shows that another forum is clearly and distinctly more appropriate, unless justice nevertheless requires the claim to proceed in England. The place of the tort and governing law are important but are not determinative. The court must assess the factual focus of the dispute and all relevant practical and forensic factors.

The claimant sought damages for personal injury suffered in a road accident in Belgium. Liability was admitted in the English proceedings, but the defendant later commenced related proceedings in Belgium and applied out of time for relief from sanction, a declaration that England should not exercise jurisdiction, and a stay on forum non conveniens grounds.

The claimant applied for judgment under CPR 14.4, with determination agreed to depend on the defendant’s application. The central issues were whether the defendant should receive an extension of time and, if so, whether Belgium was clearly and distinctly the more appropriate forum.

1. Relief from sanction. The application was made 30 days after the time limit in CPR 11.1(4). Applying Denton, the breach was serious or significant, or alternatively there was no good reason for it and the circumstances did not justify relief. The defendant’s internal communication failure was insufficient. Its solicitors had long been instructed, had notice of the English proceedings, and had ample opportunity to raise the issue. Relief and an extension of time were refused.
2. Forum non conveniens. Applying Spiliada, the defendant had to show that Belgium was clearly and distinctly the more appropriate forum. If that threshold were met, the court would still consider whether justice required the claim to remain in England.
3. The accident and the defendant’s domicile connected the claim with Belgium, and Belgian law governed the tort. Those factors were less weighty because liability was admitted and contributory negligence was not alleged. The place of the tort did not create a decisive presumption, and the court had to consider the wider factual focus of the dispute.
4. The principal live issues were causation and quantum. The claimant, his treatment, disclosure and expert evidence were substantially connected with England. The English court could apply Belgian law with assistance from experts. The likely need for a broader range of medical expertise in England was a material factor.
5. The Belgian Police Court’s specialist jurisdiction, easier enforcement in Belgium and the absence of a need for English factual witnesses did not establish that Belgium was clearly and distinctly the more appropriate forum.
6. In any event, it would be unjust to confine the claimant to Belgium. His pain and psychological difficulties made travel disadvantageous; he did not speak Dutch and would be disadvantaged by proceedings and medical examinations in an unfamiliar language and system. He had also incurred substantial English costs after the defendant failed to raise the forum issue.
7. The stay application was dismissed. The judgment records no separate determination of the claimant’s CPR 14.4 application.