http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/TCC/2016/975.html&query=(lungowe)

In this case, Zambian residents commenced proceedings in England against various defendants for alleged loss and personal injury arising from environmental damage caused by a copper mine in their area. One of the defendants is the holding company of one of the mining companies. It is a UK company and so, relying on the ECJ decision of Owusu v Jackson [2005], proceedings were commenced against the holding company and its Zambian subsidiary in England.

Article 4 of the recast Brussels Regulation provides that: "Subject to the Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State." Owusu decided that if an English court is seised of proceedings against a defendant domiciled in England, it cannot stay proceedings in favour of a non-Member State court on the ground that the non-Member State court is the more appropriate forum to hear the case. The ECJ did not answer the further question of whether this principle applies in all circumstances (however, under the recast Regulation, since 10th January 2015 the EU courts have a discretion to stay their proceedings in favour of a non-EU court if the non-EU court was first seised (which was not the position in this case). The non-EU court's judgement must also be capable of recognition and enforcement in order for a stay to be granted).

Coulson J was invited by the defendant to find that Owusu is a case on its particular facts and has no application in this case. He declined to do so. He agreed that there was force in the submission that the ECJ's reasoning is "suspect": "Whilst the principle of certainty is understood, reliance upon it here appears to ignore the fact that, in these cases, it is the defendant himself who would prefer not to be sued in the courts of his domicile". However, the fact that the reasoning in Owusu might be said to be capable of sustained criticism did not mean it was not binding. Coulson J said he was bound to follow the decision.

The judge held that the English courts did have jurisdiction to hear the claim.