Posts Tagged Forum non conveniens
McDonald v Broadspectrum. When does a claim by an employee against her employer ‘relate to’ the contract of employment?
 QSC 313 McDonald v Broadspectrum can go straight into the comparative binder – thank you Angus Macinnis for signalling it. A teacher employed by Broadspectrum on Nauru, sues it for personal injury. Amongst other things, Ms McDonald alleges Broadspectrum failed to provide a safe place or system of work, to warn her about the mould contamination, to provide protective clothing or respirators, to prevent exposure, and to provide adequate ventilation, in each instance in Nauru.
Broadspectrum applied for a declaration at the Supreme Court of Queensland that the substantive law applicable to her claims is the law of New South Wales and for an order setting aside or staying and transferring her claims to the Supreme Court of that State.
The relevant compensation schemes, in Queensland and New South Wales, each exclude from their scheme an employer’s liability arising under the law of another country. Bradley J however held that lex loci delicti is Nauru law, which therefore is lex causae. The argument that the employment contract contained implied term to the contrary was rejected.
As I discussed with Angus, I was confused by the court’s qualification of the facts as ‘tort’ (particularly as it also refers to claimant’s argument re forum contractus being Nauru); is this not a contractual claim rather than one in tort? (and one relating to the employment contract, for that matter). Angus however pointed out that in Australia workplace injury claims are usually brought as tortious breach of care claims rather than breach of a contractual obligation to provide a safe system of work. Comparatively speaking, the EU approach would probably be different. For a comparative (consumer contracts, health and safety) angle see e.g.  EWCA Civ 1889 Committeri v Club Med.
On the issue of concurrent liabilities and EU PIL see recently also Bosworth.
Punjab National Bank. In a complex set of claims, Owusu is never easily applied and material non-disclosure severely punished by the High Court.
In  EWHC 3495 (Ch) Punjabi National Bank v Ravi Srnivasan et al three loan transactions lie at the core of the case. They were made between 29th March 2011 and 1st December 2014, and totaled some US$45 million. They were made for the purposes of oil re-refining and wind energy generating projects in the USA. Most defendants are all allegedly guarantors domiciled either in India or the USA. The borrowers themselves, with the exception of two defendants, both ex-EU, are not party to the proceedings because they are insolvent.
Proceedings concern both the enforcement of the loans but also allegations of fraud, and have also been started in the US and in India however these were not disclosed to the court at the time the original permission was sought to serve out of jurisdiction.
At first glimpse the case might be easily held, along the lines suggested by lead counsel for claimant: at 5 (iii). ‘A combination of the exclusive jurisdiction clauses and the strongly arguable claims in fraud pointed towards the need to try the whole matter in one jurisdiction. England was the only possible jurisdiction. The omission to disclose the US proceedings and the Chennai proceedings caused the defendants no prejudice as they knew from the loan documentation that PNB was at liberty to bring parallel enforcement proceedings in different jurisdictions. The Chief Master ought to have placed strong reliance on articles 3 and 5 of the Hague Convention on Choice of Court Agreements (the “Hague Convention”), and article 25 of The Recast Brussels Regulation (“Brussels Recast”), which obliged the court to accept jurisdiction where there were such exclusive jurisdiction clauses.’
Owusu v Jackson would suggest no entertainment at all of forum non conveniens. However the fraud allegations initially opened the door to a point of entry for forum non seeing as none of the defendants are EU based. Sir Geoffrey Vos at 63 lists the relevant factors: ‘the most important being the choice of jurisdiction clauses in both loan agreements and guarantees, the effect of Brussels Recast and the Hague Convention, the fact that some parallel proceedings can be necessary where enforcement against real property is required, and the centre of gravity of the lending relationship which was indeed in London. In addition, the US and Chennai proceedings did not cover the Pesco loans at all, so that disallowing English jurisdiction for those contractual claims prevented PNB from bringing proceedings in its main chosen jurisdiction in respect of that lending and the guarantees given in respect of it.’
In the end however Vos agreed with the initial assessment of the High Court which emphasised non-disclosure (undoubtedly an example of procedural fraus): notwithstanding England being the most appropriate forum for those contractual claims without clear choice of court, and without a doubt the English jurisdiction guarantees of the other loans, but also for the fraud claims, had they been (which they were not) seriously arguable as presently pleaded, (at 72) jurisdiction must be dismissed in light of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure.
That is a strict approach in light of the choice of court made and an awkward way around the forceful nature of Article 25 Brussels Ia. An outcome of my discussion with Andrew Dickinson and Alex Layton, is (per Alex’ suggestion) that the High Court seems to have applied an Elefteria approach to choice of court rather than Article 25 BIa.
 NSWCA 243 Wigmans v AMP concerns the challenging application of fraus /abuse / vexatious and oppressive proceedings principles to multiplicity of proceedings. Fraus or abuse is not easily applied in civil procedure let alone conflict of laws context. See e.g. my critique of Pablo Star but equally other postings; search tag ‘abuse’ or ‘fraus’ should help locate them. Neither is the common law Aldi rule requiring claimants to bring grouped cases together easy to consider.
Following testimony given by executives of AMP in the (Australian) Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, five class actions were commenced within a short time of each other on behalf of shareholders in AMP who had made investments during periods of time in which it was said that AMP ought to have disclosed certain information to the market. Four of the five class actions were commenced in the Federal Court but were transferred to the Supreme Court. Two of the sets of proceedings then consolidated so that five became four. Each of the respective plaintiffs of the remaining four pending proceedings brought applications to stay each of the other sets of proceedings. AMP, whilst not filing a stay application, supported an outcome in which it would face only one set of proceedings.
Unclear principles on the issue have led to considerations of ‘beauty parades’ (which legal team might best lead the class action) as well as third party funding implications.
The primary judge ordered, pursuant to ss 67 and 183 of the Civil Procedure Act 2005 (NSW) and the inherent power of the Court, that the representative proceedings commenced by 3 of the 4 be permanently stayed. Each of these 3 fell within the definition of group member in the 4th, the ‘Komlotex’ proceedings. Ms Wigmans, one of the 3, made an application for leave to appeal that decision.
The issue in respect of which leave to appeal was granted (but appeal eventually refused) related to the principles applicable to applications to stay and counter-stay multiple open representative action proceedings.
The case therefore does not strictly relate to conflict of laws, rather to civil procedure and case management. However multiplicity of proceedings is clearly an issue viz conflicts, too (think lis alibi pendens; forum non etc.) hence I thought it worthwhile to flag the case; in which Bell P quotes conflicts handbooks; and in which 85 he expressly considers forum non and Cape v Lubbe. The House of Lords in that case had refused to stay proceedings which had been commenced in England where it was said that South Africa was the natural or more appropriate forum, in circumstances where it was held that the proceedings could only be handled efficiently and expeditiously on a group basis in England where appropriate funding was available. The lack of means available in South Africa to prosecute the claims required the application for a stay of proceedings to be refused.
An interesting case in which conflict of laws principles inspired domestic civil procedure rules, and where relevant considerations have an impact on e.g. the Article 33-34 Brussels Ia discussions.
Update 5 September 2019. The CJEU today has confirmed. See at 44 for the forum non issue.
Szpunar AG Opined in C-468/18 R v P that in the absence of formal provisions to that effect, the Maintenance Regulation 4/2009 cannot be interpreted to include a forum non conveniens rule.
The referring court is asking, in essence, whether Article 3(a) and Article 5 of Regulation 4/2009 must be interpreted as meaning that they preclude a court of a Member State with jurisdiction to hear an action relating to a maintenance obligation brought against a defendant who is habitually resident in that Member State or who has entered an appearance before that court from declining to exercise that jurisdiction on the grounds that such a claim is ancillary to a claim relating to parental responsibility, within the meaning of Article 3(d) of that regulation, and that the court with jurisdiction to hear the latter claim would be better placed, having regard to the best interests of the child, to adjudicate on those claims.
The Court’s first Advocate-General clearly and succinctly lays out the relevant principles and reference is best made to the Opinion. It is particularly at 83, including in relevant footnote, that he points out the consequences of the EU’s approach to distribution of jurisdiction: unless a Regulation (such as in Brussels IIa; or now also Brussels Ia) includes a forum non rule, forum non must not apply.
When I reported  EWHC 466 (Fam) V v M, I suggested that forum non considerations there, moot given that eventually jurisdiction of the English courts was upheld, would resurface in further cases. They have.  EWHC 1995 (Fam) W v L eventually went much the same way as V v M.
The Brussels BIIa Regulation applies when determining the question of jurisdiction regardless of whether there is an alternative jurisdiction in a non-member state (Re A (Jurisdiction: Return of Child)  1 AC 1 , later confirmed in CJEU UD v XB C-393/18 PPU  1 WLR 3083 ). Brussels IIa has an intra-EU forum non conveniens regime (applied in C‑428/15, Child and Family Agency, on which I report here).
Art 8(1) of BIIa provides that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.
MacDonald J at 30 posits that where the English court does have jurisdiction under Art 8 BIIa but there are proceedings also in a third party non-member state (here: Jordan) the issue becomes one of forum conveniens – which he subsequently discusses following the Spiliada criteria. In V v M to which current judgment refers at 34, Williams J reflected on whether forum non at all has calling following (he held it does; not convincingly). MacDonald J in current case first at 30 simply seems to accept such application. Then at 38 holds he need not decide this issue here (counsel had suggested the issue was in fact covered by Brussels Ia and the precedent value of Owusu therefor clear) for even if forum non conveniens has to be decided, it clearly points to England.
In conclusion, therefore: the issue still has not been settled and will, again, return.