AON UK Limited & Ors v Howden Group Holdings Limited & Ors

On a forum non conveniens application, the court must evaluate the litigation holistically, considering the place of the alleged wrongs, governing law, witnesses, documents, language, damage and the risk of inconsistent judgments. The place of commission is an important starting point, but it may be outweighed by the overall centre of gravity and the need for coherent case management.

Where an employee working in Brazil is subject to Brazil’s mandatory labour jurisdiction, that factor may justify separating the employee’s claims from related claims against the alleged procurers. It does not necessarily require the related claims against English and Brazilian corporate defendants to be tried in Brazil.

A disputed governing-law issue should not ordinarily be summarily determined where the pleaded facts provide a real prospect that the tort is manifestly more closely connected with England.

Aon brought claims arising from the alleged recruitment of teams of employees from its insurance and reinsurance business by Howden. The claims concerned alleged breaches of employment and fiduciary duties, misuse of confidential information, conspiracy, inducement of breach of contract, dishonest assistance and Brazilian unfair competition.

Applications were made by Howden’s English companies and executives, Howden’s Brazilian companies, and a Brazilian-based former Aon employee. The applications sought stays or dismissal of jurisdiction, setting aside of permission to serve out, and strike-out or summary judgment on the proposed governing law of the tort claims.

The central issues were whether Brazil was clearly the more appropriate forum for some or all claims, whether the employee had to be sued in Brazil’s Labour Court, and whether the tort claims could be governed by English law.

1. Forum non conveniens. The court applied the two-stage Spiliada approach. For defendants served within the jurisdiction, the burden was on them to show that Brazil was clearly the more appropriate forum. For defendants served out, Aon had to show that England and Wales was clearly the most appropriate forum.
2. The place of commission was an important starting point, but the court had to evaluate all relevant connecting factors. The alleged formulation and direction of the recruitment plan, the principal Howden actors, and material conduct concerning the economic torts were centred in England. Damage and some implementation occurred in Brazil. Documents were neutral, while the identified witnesses and the related Cyber claim favoured England.
3. The 12th defendant was a Brazilian employee working predominantly in Brazil under a Brazilian-law employment contract. Brazilian law required employment claims against him to be brought in the Labour Court. The employment contract contained no express jurisdiction clause, but the articles of association contained a Brazil jurisdiction provision concerning his directorship. Strong policy and practical factors favoured Brazil. His claims were stayed in favour of the Brazil Labour Court.
4. The claims against Howden UK, Howden Brazil and the 10th defendant were to proceed in England. The risk of inconsistent judgments was important but not decisive. The court considered that the claims against the 12th defendant could be separated without preventing effective claims against the other defendants, and that England provided the appropriate forum for the principal Howden litigation.
5. Governing law. The court considered that Brazil was probably the governing law under Rome II article 4(1), and probably also article 4(2), but did not finally decide those issues. Aon had reasonable grounds and a real prospect of establishing at trial that article 4(3) applied because the economic torts were manifestly more closely connected with England. The strike-out and summary judgment applications were therefore dismissed.
6. Full and frank disclosure. Aon had made an innocent error concerning Brazilian disclosure law, but the court had already considered the substance of the defendants’ objections and would have made the same service-out order. Setting aside permission would have been disproportionate. Aon’s additional costs of obtaining permission to serve out were subject to no order as to costs.

First-instance decision. No earlier decision in the same proceedings is stated as being under appeal.