The recent judgment handed down by the Court of Appeal in Robert William Cook v. Virgin Media Limited and James McNeil v. Tesco Plc ( EWCA Civ 1287) has confirmed the generally held view that the Brussels Regulation (recast), Regulation 1215/2012 ("the Recast Regulation") does not apply to proceedings which are purely domestic. The Court of Appeal has held that where the competing courts are in England and Scotland, the question of jurisdiction is to be decided under the Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act"), which (unlike the Recast Regulation) expressly permits the application of forum non conveniens principles. Forum non conveniens provides the court with a discretion to dismiss a case where another court is better suited to hear it.
The Claimants had been seeking damages for personal injuries which they alleged they had sustained in accidents in Scotland as a result of alleged negligence and/or alleged breach of statutory duty by Virgin Media Limited and Tesco Plc. The Claimants were domiciled in Scotland and the Defendants were domiciled in England. The Claimants commenced proceedings in England and both Defendants asserted that the Scottish courts were the appropriate courts to determine the claims.
At first instance, both sets of proceedings had been stayed on the basis that Scotland was the most convenient forum. Subsequently, following an order that each Claimant file evidence to demonstrate why the claim should proceed in England, orders were made striking out both claims on the principal ground that they had been brought in the wrong forum.
The decision of the Court of Appeal
The key issue for determination on appeal was whether the doctrine of forum non conveniens could apply in a purely domestic context where the competing jurisdictions were England and Scotland, or whether the question of jurisdiction was governed by the Recast Regulation. If the issue was governed by the Recast Regulation, the general principle would be that the defendant should be sued in the court in which they are domiciled (England, on the facts). Further, the Recast Regulation does not permit recourse to forum non conveniens principles, preferring legal certainty as to the allocation of jurisdiction.
The Court of Appeal noted that somewhat surprisingly there was no authority directly on whether or not forum non conveniens could apply in a purely domestic context and to intra-member state claims.
The Court of Appeal held that the Recast Regulation did not apply to proceedings issued in England against companies domiciled in England arising from accidents that took place in Scotland. The proceedings related solely to two of the constituent parts of the United Kingdom, were "purely" domestic and were solely internal to the member state. Instead, the 1982 Act applied, which expressly permitted the application of forum non conveniens principles.
The Court of Appeal ruling is clear authority on the question of whether or not the Recast Regulation applies to determine jurisdiction where the competing courts are within the United Kingdom. The ruling has brought certainty by confirming the generally accepted view that the Recast Regulation does not apply to proceedings which are internal to one member state.
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