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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Le Guevel-Mouly & Ors v AIG Europe Ltd  EWHC 1794 (QB) (19 July 2016)
Cite as:  EWHC 1794 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) ANNE-MARIE LE GUEVEL-MOULY (2) EVE MOULY
(3) ARTHUR MOULY
(a child by his mother and litigation friend
Anne-Marie Le Guevel-Mouly)
|- and –
AIG EUROPE LIMITED
Sarah Crowther (instructed by Plexus Law LLP ) for the Defendant
Hearing date: 6 July 2016
Crown Copyright ©
Mr Justice Hickinbottom:
"If you do not file an application to dispute the jurisdiction of the court within 14 days of the date of filing this acknowledgment of service, it will be assumed that you accept the court's jurisdiction and judgment may be entered against you."
"Incorrectly this acknowledgment indicated an intention to defend the claim and did not suggest that jurisdiction would be challenged. This was because the jurisdiction issue was not considered by Mr Kingston at the time of the form. I apologise to the Court on behalf of my firm for this oversight. I wish to emphasise, however, that it was not the case that the Defendant had determined to accept jurisdiction. It was because Mr Kingston did not realise that there was a jurisdiction issue."
"On 11 December 2015 a representative of the Defendant wrote to Mr Kingston asking him to consider jurisdiction as the accident was in Scotland and therefore proceedings should be before the Scottish courts. The email contains privileged information (which is not waived). The Defendant's instructions were to seek to challenge jurisdiction if possible."
"… the entitled party may, without prejudice to his right to issue proceedings against the insured person, issue proceedings against the insurer which issued the policy of insurance relating to the insured vehicle, and that insurer shall be directly liable to the entitled party to the extent that he is liable to the insured person."
Each Claimant is an "entitled party", and each has a cause of action against M Mouly for damage suffered as a result of the car accident. As a result of the insurance contract and these provisions, the Defendant is directly liable for that damage.
"Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise…".
That expressly preserves the power of the court to stay or strike out proceedings on the grounds of forum non conveniens in domestic cases, i.e. this court has the power to stay or strike out this claim on the basis that the Scottish courts are the more convenient forum (Cook v Virgin Media Limited  EWCA Civ 1287).
i) The burden of proof generally lies upon the defendant, who seeks a stay on forum non conveniens grounds. A stay will only be granted where the court is satisfied that another competent forum is appropriate for the trial of the action, in the sense that there is a more suitable court to try the case in the interest of the parties and the ends of justice.
ii) Where a claimant chooses the courts of England and Wales ("the English courts"), and it is established that those courts have jurisdiction as of right, the court will not lightly interfere: it will only disturb the jurisdiction if "the balance of factors is strongly in favour of the defendant". The other forum must be "clearly more appropriate" (page 477G). In Lord Goff's words (at page 477E-F):"In my opinion, the burden resting on the defendants in 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. In this way, proper regard is paid to the fact that the jurisdiction has been founded in England as of right…"."
iii) Where the court concludes that there is no other forum which is clearly more appropriate for the trial of the action, it will generally refuse a stay; but, if it concludes that there is such a forum, it will generally grant a stay unless there are circumstances which would render a stay unjust (page 478B-E).
iv) Because the focus is on the more convenient forum for the trial of the action, it is important to identify as clearly as possible the issues that are likely to arise at the trial of the action on its merits, because only then can the competing jurisdictions properly be compared for these purposes (see, e.g., VTB Capital plc v Nutriek International Corporation  UKSC 5 ("VTB") at  per Lord Mance JSC and at - per Lord Clarke of Stone-cum-Ebony JSC).
"(1) A defendant who wishes to –
(a) dispute the court's jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has not such jurisdiction or should not exercise any jurisdiction which it may have."
(2) A defendant who wishes to make such an application must first file an acknowledgment of service….
(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court's jurisdiction.
(4) An application under this rule must –
(a) be made within 14 days after filing an acknowledgment of service; and
(b) be supported by evidence.
(5) If the defendant –
(a) files an acknowledgment of service; and
(b) does not make such an application within the period specified in paragraph (4),
he is to be treated as having accepted that the court has jurisdiction to try the claim."
"Thus the provision in… [CPR rule 11(5)]… that a defendant who files an acknowledgment of service and does not make an application under the rule 'is to be treated as having accepted that the court has jurisdiction to try the claim' is superfluous in the case of a defendant within the jurisdiction, because there could never be any doubt that the court has jurisdiction over such a defendant."
"Where the circumstances which give rise to an application for a stay after the service of proceedings and outside the time limits in… CPR Part 11, then the application may be made under the inherent jurisdiction or under the court's powers of management in… CPR rule 3.1(2)(f)…".
CPR rule 3.1(2)(f) allows the court to stay proceedings as part of its general case management powers.
"… [T]he overall position is this: (1) if at the time the proceedings are first served, there are circumstances which would justify a stay, the application should be made promptly under… CPR Part 11; (2) any failure to comply strictly with time-limits may be dealt with by an extension of the time-limits, and any formal defect in the application may be cured by the court; (3) if circumstances arise subsequently which would justify an application for a stay, the application would be made under the inherent jurisdiction or… CPR rule 3.1(2)(f)."
i) identifying and assessing the seriousness and significance of the default;
ii) identifying the cause of the default; and
iii) evaluating all the circumstances of the case, including those specifically mentioned in relation to relief from sanction in CPR rule 3.9 (i.e. the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules of court etc) , so as to enable the court to deal with the application justly.
The Substantive Application
i) There is no overwhelming factor that unarguably marks England & Wales on the one hand, or Scotland on the other, as the "obvious forum" for the trial of this claim.
ii) Although France might be regarded as the "obvious forum" for the trial of this claim, it is not an available forum. The Claimants are entitled to have their claims determined in the United Kingdom, and the choice of jurisdiction in terms of conveniens is restricted to England & Wales on the one hand, and Scotland on the other.
iii) The fact that the Defendant is registered in England is a factor which weighs in favour of the English courts; although, she submits, a factor of little weight.
i) What injuries did the Claimants sustain as a result of the accident?
ii) What were their consequential losses?
iii) Under French law, what is the proper assessment of damages for those injuries and losses?