The main issue in this case is whether the recast Regulation (Regulation 1215/2012) applies to jurisdictional issues where the competing jurisdictions are within the UK. Here, the claimants commenced proceedings in England (where the defendants have their registered offices) but the judge at first instance held that Scotland was the most appropriate forum (relying on the forum non conveniens doctrine, which allows a court to dismiss an action, even though it has jurisdiction, on the basis that another country is a more appropriate forum). It was not disputed that Scotland would be the most appropriate forum – what was in dispute was whether the forum non conveniensrules applied at all, or whether the situation was instead governed by the recast Regulation (which precludes forum non conveniens arguments).
The Court of Appeal noted that, surprisingly, there is no prior caselaw authority on this point. It concluded that the recast Regulation does not apply to proceedings which are "purely" domestic. It cited textbook authority that "if a matter is demonstrably wholly internal to the United Kingdom, so that the only jurisdictional question which may arise is as to the part of or a place within the United Kingdom which has jurisdiction, it is not one in which the Regulation is designed to have any role".
Instead, the Civil Jurisdiction and Judgments Act 1982 applies, and this expressly allows the application of forum non conveniens principles.
The Court of Appeal also agreed that the first instance judge had had power to stay or strike out the proceedings on the ground of forum non conveniens even though the claimants had not applied to the English court for a declaration that it did not have jurisdiction. The judge's power derived from his general case management powers under CPR r3. However, the Court of Appeal cautioned that "to strike out a claim on jurisdictional grounds after a defendant has admitted liability is undesirable. The better course in both cases would have been to stay the proceedings under rule 3.1(2)(f)". However, the decision to strike out was not the subject of the appeal.