forum non conveniens

Forum non conveniens is a doctrine by which a court may refuse to hear a dispute and grant a stay of the proceedings where there is a more convenient or appropriate forum for the dispute to be heard. The defendant applies to the Court to exercise its discretion to stay the proceedings on the ground of forum non conveniens. The question is not one of convenience but of the suitability or appropriateness of the relevant jurisdiction.

In the words of Lord Diplock in MacShannon v Rockware Glass Ltd, which were subsequently adopted by the House of Lords:

“The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.”.

Application of Forum non Conveniens

The doctrine comes into play at the commencement of English legal proceedings where the defendant wishes to contest the jurisdiction of English courts to exercise its jurisdiction over the parties to hear and determine the dispute. Invariably, the defendant will be an individual or resident or incorporated outside the jurisdiction of English Courts.

To bring a successful application the defendant must show:

1. that there is another Court with competent jurisdiction which is clearly or distinctly more appropriate for the trial than England for the trial of the action, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice; and
2. it is not unjust that the claimant be deprived of the right to trial in England.

In Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 Lord Goff laid down some fundamental principles:

1. The burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay.
2. If the Court is satisfied that there is another available forum which is clearly more appropriate the burden of proof, will shift to the claimant to show why the proceedings should nevertheless be heard in England;
3. The burden on the defendant is to show that there is another forum which clearly or distinctly more appropriate than the English forum. Factors such as whether the claimant would be entitled to institute proceedings in the foreign Court. It is irrelevant whether the claimant would be able to fund the action in the foreign forum.
4. The Court may consider the factors pointing to the natural forum such as: convenience, expense, the law governing the transaction, where the parties reside or carry on business, or whether the proceedings are part of a larger dispute which would be damaged if fragmented;
5. If the Court concludes that no other forum is clearly more appropriate it will ordinarily refuse the stay;
6. If the  court concludes there is another forum which prima facie is clearly more appropriate it will ordinarily order a stay unless there are circumstances where justice requires otherwise;
7. as long a substantial justice will be done in the available appropriate forum a stay will not be refused because it will deprive the claimant of a legitimate personal or juridical advantage.

Accordingly, if the Court is satisfied that there is another forum available which is the appropriate forum for the trial of the action, the burden will shift to the claimant to show that there are special circumstances which show that the trial should nevertheless take place in England.  If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay.

The Forum Conveniens

When weighing up whether England is the appropriate forum, the court may consider, inter alia:

1. the nature of the dispute;
2. the location of evidence that would be disclosable in the litigation;
3. the location of witnesses;
4. relevance of local knowledge;
5. expert evidence that is likely to be required and the expense that is likely to be incurred;
6. grounds under which the jurisdiction of the Court is sought to be invoked;
7. the location of the litigant companies;
8. the relative relevance of English law and whether the law of another place has a closer connection to the disputes;
9. the nature of the relief sought;
10. whether proceedings have already been commenced in another jurisdiction.

Having conducted its enquiry, the Court will assess whether justice is likely to be done in the foreign jurisdiction. Provided that the court takes the view that justice will substantially be done, this obstacle may be overcome.

In The Abidin Daver [1984] AC 398, Lord Diplock said that where there were proceedings in another jurisdiction and the defendant commenced proceedings as a claimant in England, where the same facts would be at issue, then the additional expense and inconvenience could only be justified if it would cause an injustice to deprive him of some specific advantage only available in the proceedings. This happens in exceptional cases.

Reduced Importance of Forum non Conveniens

The effect of the principle has been restricted by the Brussels Convention. The Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.

Under the Council Regulation (EC) 44/2001, which governs the jurisdiction of Courts in the EEA, the following rules apply, which entirely displace the application of forum non-conveniens in England:

1. if proceedings involving the same cause of action and between the same parties have been brought in England and in another Member State, and the proceedings were first commenced in the Courts of that (foreign) Member State, then the English Court must stay proceedings; and if that State’s jurisdiction is established then the English Court must decline jurisdiction;
2. if the proceedings are related rather than the same, the other Member State has jurisdiction and the laws of the other State permit the consolidation of related actions then the English court has a discretion to decline jurisdiction  or the other Member State may stay its proceedings;
3. if an action falls within the exclusive jurisdiction of the English Court and the Courts of the other Member State, then the first seised must decline jurisdiction.

An application under forum non conveniens can be juxtaposed to an application for permission to serve outside the jurisdiction under CPR 6 where the claimant must demonstrate that England is the appropriate forum for the case.

Lis alibi pedens

Simultaneous proceedings in another jurisdiction are no more than a relevant factor in deciding which is the appropriate forum, and more relevant to civil law countries in Continental Europe, as opposed to England which is a common law jurisdiction; in actions involving Regulation States, specific rules apply.

Some of the Member States to a forerunner to the Council Regulation, the Brussels Convention (1968), were suspicious that the doctrine was unjust and unpredictable and a means whereby a Court could dispose of a case which it did not wish to hear. However, it was unclear how the doctrine should interact with forum non conveniens when the UK acceded to it and whether it was the means by which English Courts gave effect to the convention. The Court of Appeal found this to be the case in Re Harrods (Buenos Aires) Ltd [1992] Ch 72 (CA), where the jurisdiction of the English court was based upon Article 2 of the 1968 Convention, but the Courts in Argentina were clearly and distinctly more appropriate.

In Owusa v Jackson [2002] EWCA Civ 877, however, the Court of Appeal made a reference to the European Court which declared that the 1968 Convention ‘precludes a court of a Contracting State from declining jurisdiction conferred on it by Art. 2 of that Convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other contracting State is in issue or the proceedings have no connecting factors to any other Contracting State'.

Procedure

Under CPR 11, a request for a stay or a challenge to the jurisdiction of the court must be made within 14 days of filing an Acknowledgement of Service. The relevant time to apply the test is at the date of the application for leave to serve the Claim Form and Particulars of Claim out of the jurisdiction. In the event that the decision is appealed (for refusal) or contested by the defendant, intervening events may be used to enlighten the Court as to the appropriateness of the jurisdiction or otherwise.