Lord Justice Brooke : This is the judgment of the court.
1. Introductory
1. This is an appeal by the first, third, fourth and sixth defendants (whom
we will call D1, D3, D4 and D6) against an order of Judge Bentley QC
sitting as a deputy high court judge at Sheffield on 16th October 2001
whereby he dismissed D1’s application for a stay of the action, D3’s
application for an order that the court should not exercise its jurisdiction
to grant permission to serve these proceedings outside the jurisdiction
of the English court, and the application by D4 and D6 (who are jointly
represented) contesting the jurisdiction of the court under CPR Part 11.
D2 and D5 have not been served with the proceedings.
2. The Facts
2. Both the claimant Andrew O. and the first defendant, Mr N B J.
(trading as Villa H. B.-Inn Villas), are domiciled in England. The other
five defendants are limited liability companies domiciled in Jamaica.
The action arises out of a very serious accident to Mr O. when he was
bathing in the sea on a holiday in Jamaica on 10th October 1997. He
walked into the sea, and when the water was up to his waist he dived in,
and struck his head against a submerged sand bank which constituted
a concealed hazard. He sustained a fracture of his fifth cervical vertebra
which rendered him tetraplegic.
3. The involvement of the defendants who are parties to this appeal
comes about in the following way. Mr O.’s claim against D1 is in contract.
He rented a two-bedroomed holiday villa at Mammee Bay, Jamaica, from
D1. The contract provided that he would have access to a private beach,
and he maintains that it was an implied term of this contract that the
beach would be reasonably safe or free from hidden dangers.
4. D3, the M. B. C. Ltd, own the foreshore of Mammee Bay, a beach which
is close to this villa. They supplied Mr O. with a free beach pass, and in
effect he brings his action against them in tort as owners and occupiers
of the beach. We were told by the claimant’s advocate that we could
disregard the claim against them in contract.
5. D6, T. and C. R. Ltd, operate a large hotel called The Enchanted
Garden adjoining the beach. They have been granted a licence to use
the beach subject to a condition that they should be responsible for the
management, upkeep and control of the beach during the term of their
licence.
6. D4, The E. G. R. and S. Ltd, operate a holiday complex close to
Mammee Bay. Their guests were also licensed to use the beach. D4 and
D6 are associated Jamaican companies. Mr O.’s claim against them lies in
tort.
7. After Mr O. had his accident, it came to his advisers’ attention that
another English holiday-maker, A. R., had had a similar accident two
years earlier in which she, too, was rendered tetraplegic. His claim in
tort against the Jamaican defendants therefore embraces not only a
contention that they failed to warn swimmers of the hazard constituted by
the submerged sand bank but also a contention that they failed to heed
the previous injury to A. R.. She is pursuing an action for damages in the
courts of Jamaica which is due to be tried in June 2002. In her case there
was no potential defendant domiciled in England.
3. The Procedural History
8. These proceedings were started by a claim form issued out of the
Sheffield District Registry of the High Court on 6th October 2000. They
were served on D1 in England, and on 12th December 2000 Deputy
District Judge Beevers granted permission to the claimant to serve the
proceedings on D2-D6 at their residence in Jamaica. This order was made
without notice pursuant to CPR 6.20(3) which provides that:
“6.20 In any proceedings to which rule 6.19 does not apply, a claim form
may be served out of the jurisdiction with the permission of the court if –
…
(3) a claim is made against someone on whom the claim form has been or
will be served and –
(a) there is between the claimant and that party a real issue which it is
reasonable for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is
a necessary or proper party to that claim.”
9. The English courts have interpreted the words “proper party” as
including any person who may be joined in proceedings in accordance
with the rules as to joinder of parties (Massey v Haynes [1881] 21 QBD
330). CPR 7.3 provides in this context that
“A claimant may use a single claim form to start all claims which can be
conveniently disposed of in the same proceedings.”
10. D1 was served in England, and he is at present the only defendant to
have served a defence. So far as is material he avers:
“(1) that although it was an implied term of his agreement with Mr O. that
the accommodation he supplied would be reasonably safe, there was no
such term in relation to the beach;
(2) that Mr O. wholly caused or contributed to his injuries by his own
negligence, particulars of which are set out.”
11. D3, D4 and D6 were served with the proceedings in Jamaica. On 11th
April 2001 D4 and D6 made an application pursuant to CPR 11(1)(b) for
a declaration that the court should not exercise its jurisdiction in relation
to the claim against them, and for consequential orders that the service
of the claim form be set aside and that the action against them be stayed.
On 8th May 2001 D3 made an application which was in substance to
similar effect, although in form it also sought a direction that the deputy
district judge’s jurisdiction to give leave to serve the proceedings out of
the jurisdiction should be set aside because D3 was prejudiced by such an
order. CPR 11(1) provides that:
“11(1) A defendant who wishes to
(a) dispute the court’s jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction,
may apply to the court for an order declaring that it has no such
jurisdiction or should not exercise any jurisdiction which it may have.”
CPR(11)(b) gives the court on such an application the power to make
orders of the type sought by D3.
4. The evidence
12. The application by D4 and D6 was supported by a witness statement
by their English solicitor. He exhibited some photographs of the beach
and its surrounds and said that from his clients’ initial investigation
he believed that Mammee Bay was a gently shelving beach of a kind
which must be extremely common throughout the holiday and resort
areas of the Caribbean. He suggested that the beach was obviously a
natural beach where as a matter of common sense variations in the depth
of water and the occasional presence of sand bars or banks would be
expected.
13. After setting out information relating to the role of the various
Jamaican defendants in relation to the beach, he said (in paras 19 and 20
of his witness statement):
“19 On behalf of the Fourth and Sixth Defendants I would suggest that it
is obvious that Jamaica provides the natural and appropriate forum for the
trial of the Claimant’s action. The features which connect the action with
Jamaica are entirely obvious but those of greater significance are:
(1) save for the First Defendant, all other Defendants are resident in
Jamaica and carry on their respective businesses there;
(2) apart from any contract between the Claimant and the First
Defendant, the contractual arrangements involving the Second to the
Sixth Defendants were presumably all made in Jamaica and would be
subject to Jamaican law;
(3) any duty which either the Fourth or the Sixth Defendant may have
owed either as occupiers of the beach at Mammee Bay (if they were
occupiers) or in any other capacity would be the duty imposed by the law
of Jamaica;
(4) the question of breach of any duties imposed by the law of Jamaica
would, presumably, be considered in a Jamaican court with particular
reference to and knowledge of the prevailing customs and standards
applied to tourist resorts and beach use in Jamaica and under Jamaican
conditions;
(5) save for the Claimant, all witnesses to the circumstances of the
accident of which I am aware (specifically the duty security officer and the
beach club manager) are employed in Jamaica;
(6) information as to the alleged previous accident in 1995 to A. R. is also
likely to come from Jamaican sources;
(7) witnesses who will be able to provide information as to the use and
operation of the beach at Mammee Bay are highly likely to be Jamaica-
based;
(8) investigation into the precise circumstances of the accident and the
topography of the beach and the under water area will involve detailed
and careful consideration of the physical circumstances of the beach which
can best be undertaken in Jamaica. This is a particular consideration
where the accident is said to have been caused by the presence of a
sandbank which would ordinarily be a variable feature subject to influence
of winds and tides.
20. I believe that the courts of Jamaica are likely to follow similar general
principles to those of England and Wales although I have no doubt that
there will be differences of approach and application. However, I have no
reason to think that a claim of this nature could not be disposed of justly
under Jamaican law.”
14. D3’s application, for its part, was supported by a witness statement
by its English solicitor. He said, quite briefly, that because the relevant
events occurred in Jamaica and witnesses were resident there, the court
should not exercise its jurisdiction to permit Mr O. to litigate his claim
in England rather than in Jamaica. He pointed to one matter of real
prejudice to D3, which appeared to relate to the extent of its insurance
cover.
15. D1 then applied for a similar order under CPR 11.1 on the ground that
the matters in question in these proceedings were most closely connected
to Jamaica. He, too, had a problem with the extent of his insurance cover,
which did not cover compensation for damages in respect of judgments
obtained in the first instance otherwise than by a court of competent
jurisdiction within Jamaica. He pointed out that the relevant contract
related to the supply of accommodation in Jamaica. His client, who was a
builder, had built some villas on plots of land in his ownership within the
Mammee Bay complex. He employed a manageress, a groundsman and
a maid to look after his villas, and as the villas were within the Mammee
Bay complex anyone staying there was entitled to use the beach and
other facilities. He said, quite briefly, that in view of the fact that the
services were exclusively in Jamaica, the contract itself was most closely
connected to Jamaica. All the other defendants were in Jamaica and all
the witnesses his client would wish to call were resident in Jamaica. He
understood that the issues of liability and quantum would be determined
in much the same way under Jamaican law as they would in England.
16. Mr O.’s solicitor responded to all this evidence in his own witness
statement. He said his client had entered a buoyed off area of the water
off the beach to a depth of approximately waist high. He had then
dived forward and hit his head on a sandbank. He said that the accident
occurred in the late afternoon when no lifeguards were present. He
described the circumstances of Miss R.’s earlier injury and exhibited the
pleadings in her action. He then joined issue with the points made by the
solicitor for D4 and D6 which tended to favour Jamaica as the appropriate
place where his client’s case should be tried. One new substantive point
that he made was that two of his client’s witnesses, namely Mr O. himself
and Miss R., had suffered significant injuries and it would be difficult
for them to travel to Jamaica, and that all the witnesses in relation to
causation and quantum resided in the United Kingdom.
17. He exhibited to his witness statement the documentary material
placed before the deputy district judge the previous December. This
included the results of investigations which his client had caused to be
made. These also revealed that there was a natural reef running several
metres from east to west a few metres offshore, and that sand banks
formed a few feet from the reef at low tide, receding as the tide went out.
18. This evidence prompted a witness statement from the manager of the
Enchanted Garden Hotel. He gave more details of the reef and the very
limited shallow swimming area before the reef was reached about 30 feet
from the shoreline. Swimmers could see the reef and they could also see
the bottom of the shallow swimming area. He said that a sign “No Diving
Shallow Water” had been erected after Mr O.’s accident. His company did
not believe they were under any obligation to erect the sign, because it
was self-evident that persons should not dive into shallow water, but they
were becoming exasperated with the stupidity of people who wanted to
dive into the water. He did not know of any other hotels that had signs on
their beach warning swimmers about the dangers of diving into shallow
water, as the dangers were self-evident.
5. The judgment of Judge Bentley QC
19. The judge said that in UGIC v Group Josi Reinsurance Co SA (Case
No C-412/98) [2001] QB 68 the European Court of Justice held that
the question whether the jurisdictional rules in the Brussels Convention
applied to a dispute in principle depended upon whether the defendant
had its seat or domicile in a contracting state, and that the Convention
applied to a dispute between a defendant domiciled in a contracting state
and a claimant domiciled in a non-member country. He said that if the
European Court of Justice’s construction of the Convention was correct
it would appear to follow that the decision of this court in Re Harrods
(Buenos Aires) Ltd [1992] AC 72 was bad law. He had no power to refer
this question to the European Court himself, and in the circumstances he
felt bound to determine the question as to whether he had jurisdiction
to stay the proceedings against D1 in accordance with the principles laid
down by that court in Group Josi. Following the opinion clearly expressed
by the court in that case, particularly at paragraphs 59 to 61 of its
judgment, he was driven to the conclusion that it was not open to him to
stay the action as against D1.
20. He said that no Brussels Convention point arose in the cases of D3,
D4 and D6. They all contended that Jamaica was the forum with which
the action had the most real and substantial connection and that it was
clearly a more appropriate forum than England. D1 agreed with this
submission. The judge then summarised, quite briefly, the submissions
he had received from the various parties. He said that but for the fact
that he was precluded by the Brussels Convention from staying the action
against D1, he would have no hesitation in holding that Jamaica was a
more appropriate forum than England.
21. He was driven, however, to the conclusion that England and not
Jamaica was the appropriate forum. He could not stay the action against
D1 here, and he said that in these circumstances if he granted the other
defendants a stay the likelihood was that courts in the two jurisdictions
would end up trying the same factual issues upon the same or similar
evidence, with the possibility that they might reach different conclusions.
He therefore refused the applications of D3, D4 and D6.
6. The appeal to this court
22. The appeal to this court raises a number of questions of English
law, and it also obliges us to consider the effect of Jamaican law on the
recognition and enforcement of English judgments. In addition, it raises
a point on the proper interpretation of the Brussels Convention which we
are referring to the European Court of Justice in accordance with Article
2(2) of the 1971 Protocol to that Convention (for which see Schedule 2 to
the Civil Jurisdiction and Judgments Act 1982).
7. Issues of English law: (i) CPR 6.21(4)
23. We can dismiss quite quickly the suggestion that the judge did not
have power to excuse the failure of the deputy district judge to include in
his order the timetable required by CPR 6.21(4). There was no evidence
that any of the Jamaican defendants were prejudiced by this failure, which
was a failure not of the claimant, but of the court, and CPR 3.10 gave the
judge ample power, if he saw fit to use it, to remedy this error.
(ii) The delivery of the judgment at Sheffield
24. The next problem, on which we are not required to make a ruling,
arose because the judge used an unorthodox method of delivering his
reserved judgment. The hearing ended on 11th October 2001 and the
judge initialled and dated his reserved judgment on 16th October. He
then passed it to the officers of the court so that they could draw up and
seal his order, which was perfected on 19th October. The judgment and
order were then posted to the parties’ solicitors, who received it on 24th
October.
25. It is hardly surprising that this procedure caused difficulties in relation
to the computation of time for appealing. CPR 52.4(2) prescribes that
where the lower court makes no relevant order, the appellant must file
the appellant’s notice within 14 days after the date of the decision of the
lower court that the appellant wishes to appeal. This means the date
when the judge makes his decision, and not the date when the order
reflecting his decision is drawn up. See Sayers v Clarke Walker [2002]
EWCA Civ 645 at [5].
26. The judge was sitting in public, and it was his duty to give judgment
and make his judgment available to the parties in public. Time for
appealing will then run from the time he communicates his decision to
the parties (other than in draft form, following the modern procedure
discussed in Prudential Assurance Co Ltd v McBains Cooper (A Firm)
[2000] 1 WLR 2000). If he sends his written judgment to the parties in
draft, and they are able to agree the consequential orders, he may be
able to excuse their attendance when he delivers the judgment formally
in court, thereby making it available to the public and the media (if
interested), but he cannot dispense completely with the formality of
handing down his judgment in open court. Time for appealing will then
start to run.
27. We believe that it would be helpful if a Practice Direction were made
which formalises this procedure, particularly in relation to part-time
judges. Until such a Practice Direction is prepared and issued, it will be
sufficient for us to indicate that if a part-time judge has sent a reserved
written judgment to the parties in draft, and they have agreed upon any
necessary consequential orders and filed them at the relevant court office,
so that he is satisfied that nobody need attend when the judgment is
formally handed down in court, he may make arrangements with another
judge of the same court to hand the judgment down if it is inconvenient
for him to return to the court for that purpose. Needless to say, a full-
time judge may make similar arrangements if he is unavoidably absent
from his court for any reason and he cannot hand down his judgment
elsewhere.
28. On the present occasion, time for appealing was formally extended, so
that we were not obliged to make a ruling on the point.
(iii) Forum Conveniens
29. So far as the issue of forum conveniens is concerned, we are satisfied
that the judge’s conclusion on this point was well within the wide ambit
of his discretion. Mr P. QC, who appeared for the claimant, suggested
that he ought to have given his reasons at rather greater length. He
said, for instance, that the judge ought to have given more weight to
the considerations urged on him in his solicitor’s witness statement. He
placed particular weight on the problems his client and Miss R. would face
if they have to travel to Jamaica for the trial and on his contention that his
contract with D1 was governed by English law.
30. In Spiliada Maritime Corporation v Consulex Ltd [1987] 1 AC 460, in
a speech with which Lord Griffiths and Lord Mackay of Clashfern expressly
agreed, Lord Templeman said that appeal against decisions of this kind
would be rare and that appellate courts should be slow to intervene.
The judge made express reference to these points (although he did not
refer in terms to Miss R.) when he said he would have no hesitation in
identifying Jamaica as a more appropriate forum than England. We do not
find it necessary to decide whether the very simple contract with D1 was
governed by English or Jamaican law.
(iv) Joinder of the Jamaican defendants
31. Finally, so far as English law is concerned, we consider that it would
be better to defer consideration of the appeals of D3, D4 and D6 against
their joinder in these proceedings until we receive the answer of the
European Court of Justice to the question we have referred to it. We have
set out the terms of CPR 6.20(3) in paragraph 8 above. When the case is
returned to us, we shall have to consider in the light of the answers we
receive:
(i) whether there is between the claimant and D1 a real issue which it is
reasonable for the English court to try; and
(ii) if the answer to (i) is “yes”, whether D3, D4 and D6 are necessary or
proper parties to that claim.
32. We mention the first point, on which we have not yet heard any
argument, merely to draw attention to the fact that the wording of the
modern rule reflects the earlier jurisprudence whose effect is summarised
in note 6.21.28 on page 156 of the Spring 2002 edition of Volume of
the White Book Service 2002. There will not be a “real issue which it is
reasonable for the court to try” if the claimant “has no real prospect of
succeeding” on that issue. This introduces the language of CPR 24.2(a)(i),
and this court has held that “real” in that context is to be contrasted with
“fanciful” (Swain v Hillman [2001] 1 All ER 91 at [10]).
8. Issues of Jamaican law
33. If the European Court of Justice upholds the claimant’s submissions
as to the meaning of Article 2 of the Brussels Convention, and if we are
satisfied that the claimant has raised a real issue in his claim against
D1 which it is reasonable for the court to try, we would then have to
consider the effect of the Jamaican rules on the reciprocal enforcement
of judgments when deciding whether it was proper to join them to the
English proceedings in circumstances in which an English court would
ordinarily have considered Jamaica to be the more appropriate forum.
34. In Jamaica the position is governed by Part I of the Judgments
(Foreign) (Reciprocal Enforcement) Act and the Reciprocal Enforcement of
Foreign Judgments Order 1936. Section 4 of this Act, as extended by the
Order, provides, in effect, a procedure whereby a judgment in a superior
court in England and Wales may be registered and enforced in Jamaica.
It is sufficient for present purposes to note the terms of section 6(2)(a)
of that Act, to which the defendants have drawn our attention, by which
the English High Court is deemed, in effect, to have had jurisdiction in
a number of different circumstances. The only relevant circumstance
appears to be set out in section 6(2)(a)(i) which relates to a case in which
the judgment debtor submitted to the English jurisdiction by voluntarily
appearing in the proceedings otherwise than for contesting the jurisdiction
of the Court. We did not hear full argument on the effect of this provision
which was drawn to our attention shortly before we handed down this
judgment.
35. We mention this point at this stage so that the European Court
of Justice may understand some of the practical difficulties which the
courts of a member state which applies forum conveniens principles
may encounter in their normally harmonious relationships with the
courts of non-member states in cases where no other member state is
involved if the claimant’s strict interpretation of Article 2(i) of the Brussels
Convention is correct. In particular, it may possibly lead to a situation in
which the courts of a member state and the courts of a non-member state
may try the same lis on the same or similar evidence and reach conflicting
conclusions.
36. We were requested by Mr G. QC, who appeared for D4 and D6,
to refer to the European Court of Justice questions which turn on our
interpretation of CPR 6.20. We decline to do so. That court will not be
concerned with the interpretation of a procedural rule of a national court.
It will be for this court to decide on the proper interpretation of its own
rule once it has received the authoritative guidance on the interpretation
of the Brussels Convention which we now seek.
9. The issue of Community law: Introductory
37. Article 220 of the Treaty required member states to enter into
negotiations with each other, so far as was necessary, with a view to
securing fair results for the benefit of their nationals. These results
included:
(i) The protection of persons and the enjoyment and protection of rights
under the same conditions as those accorded by each state to its own
nationals;
(ii) The simplification of formalities governing the reciprocal recognition
and enforcement of judgments of courts or tribunals and of arbitration
awards.
38. The preamble to the Brussels Convention referred expressly to the
desire of the member states to implement the provisions of Article 220
in relation to the second of these aims. It also reflected their anxiety
to strengthen in the Community the legal protection of persons therein
established and recorded that they considered:
“that it is necessary for this purpose to determine the international
jurisdiction of their courts, to facilitate recognition and to introduce
an expeditious procedure for securing the enforcement of judgments,
authentic instruments and court settlements.”
39. The jurisprudence of the European Court of Justice has now
established that whenever a question arises as to which of the courts of
member states is to have jurisdiction when there might be more than one
candidate from within the member states for this purpose, the solution
must be sought in the language of the Convention. In Case No C-51/97
Réunion Européene [1998] ECR I-6511, the court said (at para 16):
“It is settled case-law that under the system of the Convention, the
general principle is that the courts of the Contracting State in which
the defendant is domiciled are to have jurisdiction and that it is only by
way of derogation from that principle that the Convention provides for
cases, which are exhaustively listed, in which the defendant may or must,
depending on the case, be sued in the courts of another Contracting
State. Consequently, the rules of jurisdiction which derogate from that
general principle cannot give rise to an interpretation going beyond the
cases envisaged by the Convention.”
40. In Case No C-412/98 UGIC v Group Josi Reinsurance Company,
the court was concerned with a case in which the plaintiffs, a Canadian
company, were domiciled in a non-member state, and there was a
dispute whether the Belgian defendants should be sued in France (where
the claimants’ brokers were domiciled) or in Belgium (the place of the
defendants’ domicile). The court (at para 33) rephrased the first question
posed by the Cour d’Appel, Versailles as seeking to ascertain whether
the rules of jurisdiction laid down by the Convention applied where the
defendant had its domicile or seat in a contracting state, even if the
plaintiff was domiciled in an non-member state. Its answer (in para 61)
was in the affirmative. The court added:
“It would be otherwise only in exceptional cases where an express
provision of the Convention provides that the application of the rule of
jurisdiction which it sets out is dependent on the plaintiff’s domicile being
in a contracting state.”
41. The situation which confronts us is a different one. It has not been
suggested that the courts of any other member state might be involved.
The competing jurisdictions are England (a member state) and Jamaica (a
non-member state). If, as the claimant submits, the language of Article 2
is mandatory even in this context, D1 would have to be sued in England,
in the courts of his domicile, and it would not be open to the claimant to
sue him in Jamaica, where the harmful event occurred, because Jamaica
is not another contracting state (see Article 5(3)), and it is not permissible
to create an exception to the rule in Article 2 unless express provision is
made to that effect in the Convention.
42. This is not a matter on which the European Court of Justice has
ever made a ruling. Two different Advocates-General have expressed
different opinions on the question. In Case No C-129/92 Owens Bank
[1994] ECR I-117 Advocate-General Lenz (at para 32 of his opinion)
expressed reservations about subscribing to the Commission’s view that
the Convention was not applicable to proceedings having a connection
with non-contracting states. On the other hand, Advocate-General
Darmon in Case No C-318/93 Brenner and Noller [1994] ECR I-4275 said
(at para 10 of his opinion) that the Brussels Convention was not intended
to regulate jurisdictional disputes which might arise between courts in a
contracting state on the one hand and those in a non-contracting state
on the other. See also paragraph 16 of his opinion in Case No C-89/91
Shearson Lehman Hutton [1993] ECR I-139.
43. The Jenard report appears to be of no direct assistance because
none of the six original member states subscribed to the doctrine of
forum conveniens. Professor Schlosser, on the other hand, although
he obliquely addressed the issue in paras 76-78 of his report, cast no
very clear light on the solution to the present problem. While observing
that the law in the United Kingdom and in Ireland had evolved judicial
discretionary powers in certain fields concerned with the jurisdiction of
their courts, he explained why it was considered unnecessary to introduce
a formal adjustment of the Convention to cover the point. To meet one
of the difficulties he mentioned (in para 78), Article 3 of the Convention
was amended to provide that three provisions of the law of the United
Kingdom (including the rule that enables jurisdiction to be founded on
personal service on a defendant during his temporary presence in the
United Kingdom) were not to be applicable as against persons domiciled
in a contracting state.
44. In his book entitled Competence Judicaire et Effets des Jugements
dans le Marche Commun, Professor Droz directly addressed the question
whether the courts of a member state could decline jurisdiction on the
grounds of lis alibi pendens when the courts of a non-member state
were already properly seised with proceedings in which the domiciliaries
of no other member state were involved. Although Articles 21 to 23 of
the Convention were not in point, Professor Droz observed how difficult
it would be if the courts of a member state felt obliged to dishonour
a Convention made with a non-member state which provided for the
principle of lis pendens. He added (at para 329):
“Even in the absence of any treaty, it is not easy to see why States whose
general principles of law contain a principle of lis pendens should not be
free to respect it so as to realise, in their general international relations,
the good administration of justice that the Brussels Convention seeks to
achieve within the Community.”
45. The present case is concerned with the doctrine of forum conveniens,
when applied as between a member state and a non-member state.
But it might just as easily have been concerned with the doctrine of lis
alibi pendens, or “prorogation of jurisdiction”, or the rule that disputes
concerned with rights in rem over immovable property should be heard
in the state where the property is situated, or any of the other situations
for which the Brussels Convention provides discretionary or mandatory
exceptions (in Sections 2 to 6 of Title 2 of the Convention). If article 2
is mandatory, then a defendant domiciled in England must be sued in
England in all such cases even if the Convention would allow or require
the action to be brought in the courts of another member state if a
domiciliary of another member state was involved.
46. The courts of two of the member states, like two of the Advocates-
General, have reached different conclusions on the issue before us. In the
Netherlands the Supreme Court held in van der Eist v Pierson, Heldring
& Pierson NV, 22 December 1989 No 13718, that it had no power to stay
proceedings between two Dutch domiciliaries in favour of proceedings
pending between them in respect of the same subject-matter in a non-
contracting state (Switzerland). It said that there was no rule of law, and
no convention, pursuant to which it should decline jurisdiction. It does
not appear, however, to have considered in this context Article 2 of the
Brussels Convention, and the doctrine of forum conveniens does not form
part of the law of the Netherlands.
47. A different view has been adopted in the courts of England. The
governing authority is the decision of the Court of Appeal in In re Harrods
(Buenos Aires) Ltd [1992] Ch 72. This decision has been followed by this
court in subsequent cases. In the most recent, Ace Insurance Company
v Zurich Insurance Company [2001] 1 Lloyds Rep 618, a case arising
from the identical language of the Lugano Convention, the court held
(at para 42) that it was bound to follow In re Harrods. Although appeals
have been allowed to proceed to the House of Lords in both these cases,
the underlying dispute was settled on each occasion before the House of
Lords ruled on the matter. On the first the House of Lords referred the
question to the European Court of Justice, but the reference was aborted
when the parties settled their dispute.
10. The issue of Community law: the defendants’ arguments
48. The defendants’ arguments, therefore, are largely founded on
the judgments of the Court of Appeal in In re Harrods, supplemented
by obiter observations by the same court in Haji-Ioannou v Frangos
[1999] 2 Lloyds Rep 337, 345-348. Dillon and Bingham LJJ in In re
Harrods considered that they were entitled to apply the doctrine of forum
conveniens to a dispute involving a domiciliary of only one member state
for reasons which we will summarise below. These propositions reflect,
in summary form, the reasons of Dillon LJ at pp 96A, 96B, 96D-F, 97A-B,
97B-G and 97G-98A; and the reasons of Bingham LJ at 100E, 101G-102A
and 103A-C. They run along the following lines:
(1) It is difficult to give much weight to the Jenard and Schlosser reports
because they appear not to have had this question in contemplation;
(2) Even at the time of the Schlosser report, the English doctrine of forum
conveniens was considerably less developed than it later became:
(3) The common basis of jurisdiction in the international order in the
matters which fell within the scope of the Convention did not apply
worldwide, since under Article 4 if a defendant was not domiciled in a
contracting state the jurisdiction of each contracting state was to be
determined by the national law. In those circumstances the desideratum
expressed in paragraph 78 of the Schlosser report, namely that a plaintiff
must be sure which court had jurisdiction was obviously not met.
(4) For the English court to refuse jurisdiction in favour of the courts of
a non-contracting state on forum conveniens grounds does not impair
the object of the Convention since ex hypothesi there will then be no
judgment of the English court to be enforced in the other contracting
states.
(5) If Article 2 of the Convention is mandatory the English court would
have to assume jurisdiction to entertain an action against a person
domiciled in England, even if the lis was pending in the courts of a non-
contracting state or where there is an exclusive jurisdiction clause in a
contract conferring jurisdiction on a non-contracting state. Such results
would be contrary to the intentions of the Convention.
(6) Since the Convention is merely an agreement between the contracting
states among themselves, its framework would not be destroyed if the
English court possessed a jurisdiction to refuse jurisdiction, on forum
conveniens grounds, in favour of the courts of a non-contracting state in a
case with which no other contracting state is in any way concerned.
(7) The Jenard report (at p 13) made clear that there was a clear and
fundamental distinction between the position of the Community-based
defendant and the defendant domiciled elsewhere.
(8) Except for one isolated (and perhaps irrelevant) reference to a
convention between France and Switzerland on page 14, the Jenard report
contains no reference to any convention between any contracting state
and any non-contracting state. This is understandable if in the absence of
any conflict or potential conflict of jurisdiction between contracting states
the Brussels and Lugano Conventions have no role.
(9) The Brussels Convention was intended to regulate jurisdiction as
between the contracting states. The contracting states were setting up an
intra-Convention mandatory system of jurisdiction.
49. In Haji-Ioannou v Frangos [1999] 2 Lloyds Rep 337 Lord Bingham
CJ, giving the judgment of the Court of Appeal, said (at pp 347 and 348)
that:
(1) In appropriate circumstances recognition of a power to stay or dismiss
proceedings on forum non conveniens grounds might promote that due
administration of justice which must be the ultimate and paramount
concern of all contracting states;
(2) It is open to a court in England, as in Scotland, to dismiss proceedings
when it declines jurisdiction on forum non conveniens grounds, and
thus to be disseised of proceedings which it considers should more
conveniently be pursued in a different forum.
11. The issue of Community law: the claimant’s arguments
50. The claimant argued on the other hand that the Brussels Convention
was not concerned only with the regulation of conflicts between the
jurisdiction of the courts of two or more contracting states. Title II
established a system of common rules on the conferment of jurisdiction
whether the alternative jurisdiction suggested was a court of another
contracting state or the courts of a non-contracting state or a mixture of
both. Three reasons of policy were suggested for this rule.
51. First, the central aim of this title was to promote legal certainty, and
the idea that a court in a contracting state could decline jurisdiction in
favour of the courts of a non-contracting state on forum non conveniens
grounds would undermine the predictability that Article 2 sought to
achieve. To confine the application of the Convention to contests for
jurisdiction between contracting states would introduce a new level
of uncertainty, for instance when one of the alternative fora was a
contracting state and the other was not.
52. Secondly, contracting states undertake by Title III to recognise and
enforce each other’s judgments without enquiring into the basis on which
jurisdiction was assumed to give those judgments, and each contracting
state was entitled to expect that the courts of each other contracting state
would assume jurisdiction in the circumstances prescribed by Title II.
53. Thirdly, a court in a contracting state, when first seised of a case,
may not stay proceedings on the basis of rules of private international law
other that those prescribed by the Convention, since unless a stay on the
grounds of forum non conveniens has the effect of disseising the staying
court, all other contracting states must decline jurisdiction pending the
judgment of the court first seised. (This was the problem which the Court
of Appeal set out to resolve in Haji-Ioannou: see para 49 above).
54. The claimant contended that Article 2 is expressed in clear and
mandatory terms, and that the text of the Convention identifies the only
occasions when departure from this mandatory rule is permitted.
55. The claimant accepted that adherence to the literal text of Article
2 may yield inconvenient results when there is no choice between the
courts of contracting states, and the courts of a non-contracting state
may appear to provide a more convenient forum, whether because the
lis is already proceeding there, or because the dispute is concerned with
rights in rem over property in that forum, or because the parties have
conferred exclusive jurisdiction on that other forum.
56. He suggested, however, that inconvenience may have to yield to the
desirability of certainty in such cases, alternatively that despite the rigid
approach revealed by the case-law of the Court of Justice, the text of
the Convention may permit of implied exceptions in these cases. In this
context it was said that the considerations raised by the doctrine of forum
conveniens (which involves a substantial exercise of discretion and is
largely unknown in civilian jurisdictions) are entirely different from those
raised by the doctrine of forum prorogation, for which the Convention
makes express provision so far as the courts of contracting states are
concerned.
57. The claimant places reliance on the decision of the Court of Justice
in the Group Josi case. The court there stated that the general rule set
out in the first paragraph of Article 2 was subject only to the exceptions
exhaustively listed in the Convention. There was no exception in the case
of a choice between the courts of a contracting state and the courts of a
non-contracting state, even when no other contracting state was involved.
58. English academic opinion is divided on this issue. Compare,
for instance, Lawrence Collins, Forum Non Conveniens and the
Brussels Convention [1990] LQR 535 with Cheshire and North, Private
International Law, 13th Edition, pp 264-6 and Briggs and Rees, Civil
Jurisdiction and Judgments, paras 2.227 and 2.231.
12. The reference to the European Court of Justice
59. In these circumstances we announced in court on 14th May 2002
our intention to refer this dispute about the interpretation of Article 2 of
the Brussels Convention to the Court of Justice for a preliminary ruling
pursuant to our powers contained in Article 2(2) of the 1971 Protocol to
the Convention. We set out our Questions to the Court of Justice below.
Without a resolution of these questions by way of preliminary ruling by
the Court of Justice it will not be possible for this national court to give a
final judgment on this appeal.
60. We respectfully request the Court of Justice to give consideration to
the acceleration of its preliminary ruling in this case. The claimant was
grievously injured in his accident, as appears from the medical report
of Mr M.R.McClelland dated 17th May 2002, which we are causing to be
annexed to this reference, and we believe that it is in the interests of
justice for the jurisdictional issues in this case to be resolved without
unreasonable delay.
Order:
1. The costs of the Appeal up to date of reference to the European Court
of Justice be reserved.
(Order does not form part of the approved judgment)
QUESTIONS
1. Is it inconsistent with the Brussels Convention on Jurisdiction and
the Enforcement of Judgments 1968, where a claimant contends that
jurisdiction is founded on Article 2, for a court of a Contracting State to
exercise a discretionary power, available under its national law, to decline
to hear proceedings brought against a person domiciled in that State in
favour of the courts of a non-Contracting State:
(a) if the jurisdiction of no other Contracting State under the 1968
Convention is in issue;
(b) if the proceedings have no connecting factors to any other Contracting
State?
2. If the answer to question 1(a) or (b) is yes, is it inconsistent in all
circumstances or only in some and if so which?