Cook v Virgin Media and McNeil v Tesco: court invokes doctrine of forum non conveniens of its own volition
Whenever the court makes an order of its own volition, it serves as a reminder of how wide the court’s discretion is when it comes to exercising its case management powers. We must always bear this in mind, and advise our clients that the court could independently make an order that neither party may have contemplated. This can, of course, make predicting the outcome of any case rather difficult, if not impossible!
Submitting to jurisdiction
In a situation where a defendant files an acknowledgment of service stating that they intend to defend the claim and then duly submits a defence, a claimant could be forgiven for thinking that any query as to which court has jurisdiction is no longer an issue. By engaging in the process, the defendant has submitted to the jurisdiction and lost their opportunity to contest it.
This is also usually the case when a defendant acknowledges service and indicates that they intend to contest jurisdiction under CPR 11, but then makes no such application within the requisite 14 day period. In not submitting an application, the defendant loses their opportunity to contest jurisdiction.
CPR 11(5) clearly states that if a defendant files an acknowledgment of service and does not make an application to contest jurisdiction within the stipulated period, they are to be treated as having accepted that the court has jurisdiction to try the claim.
Jurisdiction within the UK
However, where jurisdiction within the constituent parts of the UK is in issue, a claimant can no longer rest easy on this score, following the Court of Appeal’s decision in Cook v Virgin Media and McNeil v Tesco. In this case, the court invoked the doctrine of forum non conveniens of its own accord, notwithstanding that the defendants had not applied to contest jurisdiction under CPR 11.
The claimants brought their claims in the jurisdiction of the defendants’ registered offices (England), despite being domiciled in Scotland themselves and despite the alleged personal injuries being sustained in accidents which occurred in Scotland. In addition, the defendants had not made any applications to dispute jurisdiction (one had indicated on the acknowledgment of service that they intended to dispute jurisdiction but went no further); although both had set out in their defences that they believed Scotland to be the most appropriate forum.
I assume, then, that the claimants were rather surprised at the district judge’s decision in the Carlisle County Court. Taking all factors into consideration, the district judge considered that Scotland was the more appropriate forum and struck out the claims. Reference was made to the fact that many Scottish cases were being heard by the Carlisle County Court, so presumably regard had been given to its workload, as well as to which was the most appropriate and convenient forum for all parties involved. However, given the connection with England and the defendants’ submission to that jurisdiction, it is not surprising that the claimants appealed.
The Court of Appeal’s decision
The Court of Appeal upheld the district judge's decision to strike out the claims. It held that the 2001 Brussels Regulation did not apply, as there was no international element and the proceedings were "purely domestic" to the UK. As a result, the cases came under the Civil Jurisdiction and Judgments Act 1982, section 49 of which expressly reserves the doctrine of forum non conveniens in domestic cases.
The court agreed with the district judge’s argument that he had the power to invoke the doctrine of his own accord pursuant to his case management powers. Lord Dyson MR expressly referred to the court having to actively manage cases and that, under CPR 3, the court has wide case management powers to further the overriding objective.
In this costs conscious climate that we are all now living in, striking out the claims seems rather a waste of everyone's time and money (including the court's), particularly when liability had been admitted by one of the defendants. However, it is worth noting that Lord Dyson MR considered that striking out a claim (rather than staying the proceedings) in such circumstances was undesirable, but this point was not subject to the appeal.
On a practical level, where jurisdiction within the constituent parts of the UK is in issue, a claimant must carefully consider where to bring the claim. Furthermore a claimant cannot rely on the fact that the defendant has not disputed jurisdiction, as the court may independently invoke the doctrine of forum non conveniens if it is of the view that a different jurisdiction would be a more appropriate forum for the claim to be heard.
Similarly, it would also be a risky strategy for a defendant to rely on the court using its discretion by simply indicating an intention to dispute jurisdiction. If the jurisdiction is genuinely in dispute, an intention to dispute it should be followed up with an application under CPR 11.
It may be that this decision will be more wide reaching. We may see the court's making more orders of its own volition as a result of it fulfilling its duty to be more actively involved in the case management of claims. Only time will tell.
This article was first published on the Practical Law Dispute Resolution blog on 9 February 2016 and was written by Nikki Yates, a Solicitor in the Litigation team.