Forum Non Conveniens

• Author: International Law Group
• Pages: 48-54

Page 48

Plaintiff Owusu, who was domiciled in the United Kingdom, visited a holiday villa at Mammee Bay in Jamaica which he had rented from a Mr. Jackson (defendant), trading as "Villa Holidays Bal-Inn Villas", also a U. K. domiciliary. The agreement granted plaintiff access to a private beach. During the holiday, the plaintiff, while in seawater up to his waist, dove under water. In doing so, his head collided with a hidden sandbank; the impact fractured his fifth cervical vertebra and rendered him a tetraplegic.

Plaintiff sued defendant in the civil division of the English High Court for breach of contract. His theory was that the contract contained an implied term that the beach would be reasonably safe or free from hidden dangers. Plaintiff also brought a tort action in the same court against three Jamaican companies, including the owner of the beach in question and several hotels licensed to use it.

Defendant and the Jamaican companies did not question the English court's jurisdiction over them. But they did ask the English court to decline to exercise its jurisdiction because, under the English law of forum non conveniens, the courts of Jamaica at the locus delicti were a more just and convenient forum in which to resolve the dispute.

The judge ruled, however, that it was not open to him to stay the action against Jackson since he and plaintiff were both domiciled in a Contracting State of the EC Judgments Convention. See Convention of September 27, 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. [1978] O.J. L304/36, as amended by the Accession Conventions of October 9, 1978, October 25, 1982 and May 26, 1989, generally called "the Brussels Convention."

Notwithstanding the links that the action might have with Jamaica, the judge reasoned that there was a danger that the courts of two jurisdictions would end upPage 49 trying the same factual issues upon the same or similar evidence but reach inconsistent conclusions. He therefore held that the U. K. -- and not Jamaica -- was the appropriate forum.

Convention Art. 2 provides that: "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. Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State".

Art. 5(1) and (3) of that Convention further declare that, in matters relating to a contract, an EU domiciliary may be sued in another Contracting State in the courts of the place set for the performance of the obligation in question, and, in matters relating to tort, delict or quasi-delict, in the courts for the place where the alleged harmful event had taken place. Moreover, Convention Art. 21, which concerns lis pendens, seeks to forestall conflicting decisions as between courts of two or more Contracting States.

On the other hand, according to the English doctrine of forum non conveniens, a national court may decline to exercise its jurisdiction on the ground that a court in another State, which also has jurisdiction, would objectively be a more appropriate forum for the trial of the action. The search is for a forum in which the case may be tried more cost-effectively in the interests of all the parties and the ends of justice. See the leading House of Lords judgment in Spiliada Maritime Corporation v. Cansulex Ltd., [1987] A.C. 460; [1987] E.C.C. 168.

When an English court decides to invoke the doctrine of forum non conveniens, it stays its own proceedings so that it can resume the provisionally suspended proceedings should it turn out, e.g., that the foreign forum has no jurisdiction to hear the case or that the claimant cannot get effective justice in that forum. Notwithstanding the links that the action brought against the other defendants might have with Jamaica, the judge held that the United Kingdom, and not Jamaica, was the appropriate forum State.

The defendant Jackson and the third, fourth and sixth Jamaican defendants appealed that order. The Court of Appeal (Civil Division), however, decided to stay its proceedings and to refer the following two questions about Community law to the European Court of Justice pursuant to Art. 234 for a preliminary ruling: "1. Is it inconsistent with the Brussels Convention ..., where a claimant contends that jurisdiction is founded on Article 2, for a court of a Contracting State to exercise a discretionary power, available under its national law, to decline to hear proceedings brought against a person domiciled in that State in favour of the courts of a non-Contracting State: (a) if the jurisdiction of no other Contracting...