Owusu v NB Jackson [2005] 1 Lloyd’s Rep 452 (forum non-conveniens)
The case of Owusu v NB Jackson puts an end to the controversy over whether the English court has power to stay its proceedings in favour of a non-Contracting State on the basis of forum non conveniens, namely that the other jurisdiction is more appropriate to deal with the case: Owusu v Jackson and Others Case C-281/02.
According to the doctrine of forum non conveniens, as laid down by the House of Lords in the well-known case of Spiliada Maritime Corp v Cansulex [1987] AC 460, the English court may decline jurisdiction on the ground that there is a court in another jurisdiction which is clearly a more suitable forum for the trial of the action, in the interests of all the parties and the justice of the case.
It decided, contrary to the view taken by the Court of Appeal more than 10 years earlier in Harrods Buenos Aires Limited [1992] Ch 72 that it did not. This decision follows a line of decisions in which the ECJ has opted for certainty over the flexibility favoured by English common law.
Facts
The case concerned a serious accident in Jamaica. Mr Owusu, the claimant, a British national domiciled in the United Kingdom, suffered serious injuries in Mammee Bay, Jamaica, when he struck his head when swimming against a submerged sandbank.
Mr Jackson, the first defendant, who was also domiciled in the United Kingdom, had let the holiday villa to Mr Owusu. Mr Owusu sued the first defendant in the English courts for breach of an implied term that the private beach where the accident occurred would be reasonably safe or free from hidden dangers.
Mr Owusu also sued in the same action several Jamaican companies who owned, occupied or licensed the use of the beach. The action alleged a failure to warn swimmers of the hazard constituted by the submerged sandbank and also that the defendants had failed to heed a similar earlier accident.
ECJ’s judgment
The ECJ first rejected an argument put forward by the defendants and the United Kingdom government (and which had formed the basis of the Court of Appeal decision in the Harrods Buenos Aires case) that the domicile rules in Article 2 of the Brussels Convention (since replaced, with no material differences in this respect, by the Brussels Regulation) had no application because the claimant and one of the defendants were domiciled in the United Kingdom and the other defendants were domiciled in a non-Contracting State (rather than in another Contracting State).
Article 2 provides: “Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State…”
The court held that Article 2 was not subject to a condition that there should be a legal relationship involving a number of Contracting States, although for the Convention to apply at all, the existence of an international element was required (as it did in this case). The court then went on to hold that the forum non conveniens doctrine was incompatible with the Brussels Convention for the following reasons:
▪ Article 2 is mandatory in nature and can only be derogated from in ways expressly provided for by the Convention.
▪ No exception on the basis of forum non conveniens was provided for in the Convention, even though the doctrine was discussed when Denmark, Ireland and the United Kingdom acceded.
▪ Legal certainty would not be fully guaranteed and the predictability of the rules of jurisdiction would be undermined.
▪ A defendant is generally better placed to conduct his defence before the courts of his domicile and would be unable reasonably to foresee before which other court he might be sued.
▪ Where a foreign court may be a more appropriate forum, it is for the claimant to establish that he will not be able to obtain justice before that court, or that the foreign court has in fact no jurisdiction or the claimant does not in practice have access to effective justice from that court, all of this irrespective of the cost entailed by the bringing of a fresh action before a court of another state and the prolongation of the procedural time limits.
▪ Forum non conveniens is recognised in only a limited number of Contracting States, so would affect the uniform application of the rules of jurisdiction in Contracting States.
The defendants emphasised the negative consequences which would result in practice from the exclusion of the doctrine of forum non conveniens. These consequences included:
▪ The expense of English proceedings.
▪ The difficulties in recovering costs if the claimant’s action was dismissed.
▪ The logistical difficulties resulting from geographical distance.
▪ The need to assess the merits of the case according to Jamaican standards.
▪ The enforceability in Jamaica of a default judgment and the impossibility of enforcing cross claims against the other defendants.
The court considered that “genuine as these difficulties may be” they were not such as to call into question the mandatory nature of the fundamental rule of jurisdiction contained in Article 2 of the Convention.
The result of this decision is that the claimant is entitled to bring the proceedings in England, even though England had no connection with the accident and Jamaica appears to be a more suitable forum for the trial.
The court declined to answer a second question referred to it, namely whether the application of forum non conveniens is ruled out in all circumstances. As this was not dealt with, this leaves open the possibility of the doctrine of forum non conveniens still having application in certain circumstances. In particular, where the parties have expressly chosen the jurisdiction of a non-Contracting State, where other proceedings are or have been pending in the other state, or the subject matter of the dispute is such that a Contracting State would, in those circumstances, have taken exclusive jurisdiction, e.g. certain disputes relating to land situated in that country.
Conclusion/Comment
The question of whether a stay could be ordered on the grounds of forum non-conveniens in respect of a non-Contracting State has been an open question for some years. In the Harrods case, the Court of Appeal judgment was appealed to the House of Lords who referred the question to the ECJ but the action settled before the ECJ could give judgment. We now know the ECJ’s answer and, not surprisingly in the light of recent ECJ decisions (in particular Turner v Grovit Case C-159/02 and Gasser v Misak Case C-116/02 ), and given the absence of a similar doctrine in most other Contracting States, the court has favoured a rigid approach which ensures certainty and uniformity of application across Contracting States. This, however, has been at the expense of the flexibility previously available to the English courts to ensure a dispute was heard in its natural forum.
The Owusu decision will have a significant impact on the determination of jurisdiction questions where the claimant sues both English domiciled defendants and foreign domiciled defendants from a non-Contracting State in the same proceedings. It appears to lead to the conclusion that where a number of defendants are sued in England, but only one of them is domiciled here, the English court will not stay proceedings even if the natural forum is in a non-Contracting (or non-Regulation) State, or even if the principal defendant (as in Owusu itself) is domiciled in a non-Contracting (or non-Regulation) State. Such a defendant may therefore find himself “dragged” into proceedings in England, even where neither he nor the subject matter of the proceedings have any material connection to England