The recent High Court decision in Lunn v Antarctic Logistics serves again to emphasise the fact-specific nature of establishing jurisdiction in England & Wales in claims arising from ‘accidents abroad’. 

At the time of the accident in this case, the UK-resident claimant was a self-employed engineer carrying out aircraft maintenance at the defendant’s facility in the Antarctic. Having issued proceedings, he applied to the court for permission for service outside the jurisdiction on the defendant company which was registered in South Africa. In order to secure permission, he would need to satisfy all three parts of the jurisdiction test, ie that

• the claim has reasonable prospects of success,
• it passes the relevant jurisdictional ‘gateway’ applying to that type of claim, and
• England & Wales is “the proper place” (CPR 6.37)(3)) for the case to be heard (aka forum conveniens)

On the first aspect, the prospects of success are to be assessed according to the relevant applicable law, the determination of which is governed by the retained version of the Rome II Regulation. At the hearing, however, the claimant sought to rely on the application of English law under the so-called ‘default rule’ from the leading Supreme Court decision, Brownlie II [2021] UKSC 45, or in the alternative, on the basis of the ‘presumption of similarity’. The judge was content to adopt that approach¹ and went on to find that “the core allegation that the Defendant was negligent in failing to keep [aircraft safely apart] must, in my view, be taken to satisfy the relevant test of having a real prospect of success/raising a serious issue to be tried on the merits” and added that disputes about the sequence of events, the weather, or the knowledge of the defendant’s staff at the time of the accident all were matters to be determined at trial.

On the second, the relevant ‘gateway’ for claims in tort at CPR PD 6B, 3.1(9) includes that “damage was sustained, or will be sustained, within the jurisdiction”. Given the decision in Brownlie II that this would be satisfied where ongoing losses are sustained in England & Wales following an accident abroad this was not at issue. 

Turning to forum conveniens, the judge noted that the Latin phrase “is something of a misnomer [because] it is not a question of ‘convenience’, but of establishing the appropriate forum” (emphasis added) - a very helpful reminder of what needs to be proved. He again referred to Brownlie II, quoting from Lord Lloyd-Jones’s judgment that the purpose of the forum conveniens principle is to “prevent the acceptance of jurisdiction in situations where there is merely a casual or adventitious link between the claim and England…there remains a burden on the claimant to persuade the court that England & Wales is the proper place in which to bring the claim [and] the principle applies a structured discretion, the details of which have been refined in the decided cases, in a readily predictable manner²".

The relevant case law sets out a very wide range of features of a claim of which account should be taken when determining forum conveniens. It is not proposed to list those here, simply to note that the judge’s structured analysis of the features of this case led him to conclude that the test was met and the claim could therefore proceed. A theme of the judgment on this point is that the defendant’s evidence on the relevant features seems to have been less comprehensive than the claimant’s.

This may well serve to emphasise the need to prepare thoroughly for forum conveniens arguments but it is also worth underlining - as the quote above from Lord Lloyd-Jones does - that the burden of proving forum conveniens rests on the claimant seeking to rely on it. 

Conversely, if a defendant seeks to challenge jurisdiction (on this aspect, rather than on prospects of success or the relevant ‘gateway’) then it will bear the burden of proof of showing forum non conveniens.

In order to succeed, it will not be enough to show that England is not the appropriate forum: the defendant needs to demonstrate that the courts of another identified country have that status. This was made very clear by Lord Goff in the seminal case of The Spiliada [1987] AC 460] - which is referenced in Lunn, as it has been in all the recent decisions on forum - when he said that “the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum.”  Although this is an important point for defendants seeking to challenge jurisdiction, whether it really amounts to a two-step process in practice is perhaps beside the point, since it must follow from proof of the latter part that the former has also been met.

The full judgment is available here. 

¹ The detailed section about this in the judgment is not summarised here.

² Whether the application of the test always operates in practice in such a manner in certainly open to debate, as is the rather more academic question of whether the forum conveniens test is more or less predictable than the rules on jurisdiction in the Brussels 1 Regulation that applied while the UK was a member of the EU.