The two recent English personal injury cases of Cook v Virgin Media Ltd; and McNeil v Tesco Plc 2015 EWCA CIV 128 highlight the need for advisors to carefully consider whether Scotland or England is the better place to raise a court action. Getting it wrong can result in the case being dismissed and the consequent expense of doing so. This is, of course, on the basis of the common law principle of forum non conveniens. This is the principle applied by the courts to allocate disputes to the most appropriate court taking into account the interest and standing of the parties involved and the ends of justice.

These cases amply demonstrate that a mis-guided forum shopping exercise can have very adverse consequences where parties have a choice between the Scottish or English courts. It is entirely possible that one or other of the courts may be judged as not being the more appropriate or convenient forum in the particular circumstances of the case.

These two sets of proceedings were brought in the English courts, claiming damages for personal injuries alleged to have been sustained in Scotland. The pursuers were based in Scotland and the defendants were based in England. The defendants argued that Scotland was the correct court to hear the claims, but they did not actively challenge jurisdiction. Despite this, the court, on its own initiative, dismissed the cases on the grounds that the proceedings should have been raised in Scotland as it was the more appropriate forum. The matters were appealed to the Court of Appeal by the claimants in England but the appeal was dismissed.

Of considerable significance is the fact that the courts, both at the first instance and at appeal, made it clear that it is up to the court to decide if the action is to be dismissed as it’s their overriding duty to actively manage cases and ensure that they are dealt with for the convenience of all concerned including witnesses. Other factors taken into account will relate to expense, the relative law applying, accident location and where parties are based.

The key point in considering the appropriate court is always to have in mind the fact that it is not the absolute right of the claimant to make the decision. Any decision will always be subject to the forum non conveniens qualification. Even if one or both parties does not raise the issue and is happy to proceed, parties have to be aware of the fact that the court itself may raise it and deal with it in its own discretion. These cases are a warning for all involved in litigation. The consequences of picking the wrong court can prove to be very expensive for the parties involved!