The Court of Appeal referred a dispute about the interpretation of Art.2 Brussels Convention on Jurisdiction and the Enforcement of Judgments Act 1968 to the European Court of Justice.
Appeal by the first, third, fourth and sixth defendants ('D1', 'D3', 'D4' and 'D6' respectively) from an order of HH Judge Bentley QC on 16 October 2001 where 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 the proceedings outside the jurisdiction of the English court and the application of D4 and D6 contesting the jurisdiction of the court under CPR Part 11. The claimant ('C') and D1 were domiciled in England. The other five defendants were limited liability companies domiciled in Jamaica. The action arose out of a serious accident to C when he was bathing in the sea on holiday in Jamaica on 10 October 1997. He walked into the sea, dived in, and struck his head against a submerged sand bank, sustaining a fracture of his fifth cervical vertebra that rendered him tetraplegic. C claimed against D1 in contract and against D3, D4, and D6 in tort. D3, D4 and D6 were served the proceedings in Jamaica. They, together with D1, 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 consequential orders that the service of the claim form be set aside and that the action against them be stayed. The applications were made on the grounds that because the relevant events occurred in Jamaica and witnesses were resident there, the court should not exercise its jurisdiction to permit C to litigate his claim in England rather than in Jamaica. The judge held that: (i) following the decision of the European Court of Justice ('ECJ') in Case C-412/98 UGIC v Group Josi Reinsurance Co SA (2001) QB 68, it was not open to him to stay the action against D1; (ii) but for the fact that he was precluded from staying the action against D1 he would have had no hesitation in holding that Jamaica was the most appropriate forum; and (iii) because he could not stay the action against D1, England was the more appropriate forum so as to avoid having courts in two jurisdictions trying the same factual issues on the same or similar evidence. On appeal an issue was raised, inter alia, as to the proper interpretation of the Brussels Convention on Jurisdiction and the Enforcement of Judgments Act 1968.
(1) The ECJ had never made a ruling on the interpretation of Art.2 of the Convention in this context. There were conflicting opinions of Advocates-General on the matter. That being so, the ECJ was requested to give a preliminary ruling on the questions: (a) whether it was inconsistent with the Convention, where a claimant contended that jurisdiction was founded on Art.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: (i) if the jurisdiction of no other Contracting State under the Convention was in issue; and (ii) if the proceedings had no connecting factors to any other Contracting State; and (b) if the answer to (a)(i) or (a)(ii) was yes, whether it was inconsistent in all circumstances or only in some and if so which. (2) On the issue of forum conveniens, the judge's conclusion was well within the permitted wide ambit of discretion. (3) The consideration of the appeals against the joinder of D3, D4 and D6 should be deferred pending the answer to the question referred to the ECJ.
Colin Thomann instructed by Myers Fletcher & Gordon for D1. Christopher Strachan instructed by Saunders & Co for D3. Stephen Grime QC instructed by Lovells for D4 and D6. Richard Plender QC and Philip Mead instructed by Russell Jones & Walker for C.