Klifa v Slater [2022] EWHC 427 (QB)

Summary

In respect of a personal injury claim, England and Wales domiciled Defendants made an application requesting that the Court refuse jurisdiction and stay the claim on grounds of forum non conveniens. The application was refused.

Facts

The index accident occurred in France, prior to Brexit, on 28 January 2018. The First Defendant, insured by the Second Defendant, skied negligently into the French domiciled Claimant, causing her to suffer personal injury. Liability was admitted. Quantum remained in dispute.

Regulation 1215/2012, applied at the time of the accident, entitling the Claimant to pursue her claim in any court irrespective of whether it was the most convenient or appropriate forum. On 14 January 2021 and in compliance with the limitation period, the claim form was issued in England. However, the date of issue fell after the Brexit “Exit Day”, 31 December 2020. Accordingly, the Regulation was no longer applicable.

Arguing that the French courts provided the “most appropriate forum”, an application was made by the Defendants to stay the claim on grounds of forum non conveniens.

Outcome

The Defendant’s application failed.

Firstly, the Defendants failed to establish that France was “distinctly” or “clearly” the more appropriate forum in accordance with the test set out in Spiliada Maritime Corp v Cansulex Ltd [1987] A.C. 460, [1986] 11 WLUK 189. The Court found that the Defendants could not demonstrate that England was clearly the wrong forum: the Defendants lived in England and if enforcement was required it would take place in England; the Defendants and their lawyers spoke English; the sole witness of fact lived equidistantly between London and the appropriate court in France and was able to give evidence in English; and, English courts were capable of dealing with matters in relation to quantum in accordance with French law.

Secondly, even if the most appropriate forum for the claim was “distinctly” or “clearly” France, the Court found that justice required that the application be refused for the following reasons: the expense incurred and work already carried out by the Claimant in advancing her claim in England would be wasted were the stay granted; granting a stay of forum non conveniens is discretionary and does not equate to a limitation right; enforcing a French judgment in England would be more complicated and costly; English costs recovery rules made bringing the claim in England preferable; determining quantum in accordance with French substantive law could be done by English courts; and, the only advantage to the Defendants from the claim proceeding in France would be the avoidance of the English law costs rules.

Finally, the fact that 31 December 2020 had passed by the time the claim was issued made no material difference, nor did it impact the substantive rights of the parties concerned.

The judgment in full can be found here.

 

[1] Klifa v Slater [2022] EWHC 427 (QB), Paragraph 42

[2] Ibid, Paragraph 47

[3] Ibid, Paragraph 49

[4] Ibid, Paragraph 48

[5] Ibid, Paragraph 48

[6] Ibid, Paragraph 48

[7] Ibid, Paragraph 48

[8] Ibid, Paragraph 49

 

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