Cook v McNeil [2015] EWCA Civ 1287

Does the doctrine of forum non conveniens apply in civil and commercial cases where the competing jurisdictions are countries within the UK? Put another way: does the English court have the power to stay or strike out a claim on the ground that the natural and more appropriate forum is Scotland or Northern Ireland?

To this short but significant question no authority provided any direct answer until the recent decision of the Court of Appeal in Cook v McNeil [2015] EWCA Civ 1287.

The Claimants (who were domiciled in Scotland) sued the Defendants (domiciled in England) in England for damages for personal injuries they alleged they sustained in accidents in Scotland as a result of the Defendants’ negligence and/or breach of statutory duty. While neither of the Defendants made a CPR Pt. 11 application challenging the jurisdiction (though both asserted in their defences that Scotland was the correct place to hear the claims), the Court of its own motion stayed proceedings in favour of Scotland. The Claimants appealed that ruling.

By the time the matter was before the Court of Appeal it was common ground that Scotland was the most appropriate forum to determine the dispute, however the Claimants denied that the Court could decline jurisdiction on forum non conveniens grounds. That was because (the Claimants submitted) the English Court was exercising jurisdiction either by virtue of Art 2 or 24 Brussels I Regulation (and therefore applying Owusu v Jackson (Case C-281/02) [2005] QB 801 the Court could not decline jurisdiction on forum conveniens grounds), or alternatively the rules in Sch.4 Civil Jurisdiction and Judgments Act 1982 (“the 1982 Act”) which the Claimants contended was a regime parallel (and save where expressly provided otherwise, identical) to the Regulation and which therefore also precluded a stay on FNC grounds. The Defendants responded that the Regulation applied to civil and commercial cases where there is an international element, but not to cases which are solely internal to a member state, and that the Claimants’ interpretation of the 1982 Act was wrong.

The Court of Appeal held that the Defendants were correct:

  1. The Brussels Regulation only applies where there is an international element: i.e. the legal relationship/dispute in issue must have connections between two different contracting or non-contracting states. Since the UK is the contracting state to the Brussels Regulation, a dispute with connections solely to countries internal to the UK is not an international dispute which engages the Regulation. The Claimants’ arguments based on the Regulation were therefore misconceived.
  1. The Claimants’ arguments based on the 1982 Act were also bad. Schedule 4 of the Act reproduced the provisions of the Regulation but with modifications, most notably s. 49 of the 1982 Act which expressly preserved the forum non conveniens doctrine for use in “domestic” cases. The CEJU in Kleinwort Benson v City of Glasgow DC (Case C-346/93) [1995] ECR I-615 had emphasized the rules in the 1982 Act were domestic rules and did not require the UK courts to decide domestic disputes before them “by applying absolutely and unconditionally the interpretation of the [Brussels] Convention provided to them by the [ECJ]” (see §20), and there was therefore no reason why the terms of s.49 of the 1982 Act could not be given effect to. That section provided a total answer to the Claimants’ case.
  1. Finally the Claimants contended that the Court had no jurisdiction to stay or strike out the claim on the ground of forum non conveniens of its own motion and absent a CPR Pt 11 application by the Defendants. That contention was also squarely rejected by the Court: the Court retains power under CPR r.3.1 to actively case manage proceedings before it, and that includes the power to stay proceedings in favour of a more appropriate forum.

The Court of Appeal’s decision provides helpful clarity upon an area which lacked previous authority and both rightly sets the limits of the application of the Brussels I Regulation and reinforces the Court’s power to case manage proceedings.