Posts Tagged forum non
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.
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.
Huawei v Conversant wireless. Reflexive application of patent validity jurisdiction confirmed in principle – but rejected in casu.
In  EWCA Civ 38 Huawei v Conversant Wireless (on appeal from  EWHC 808 (Pat) the Court of Appeal considered whether in the event of 2 defendants being UK based (the others domiciled in China) the UK courts may relinquish jurisdiction reflexively to honour Article 24(4) Brussels Ia’s exclusive jurisdictional rule for the validity of patents.
Neither Article 33’s lis alibi pendens or Article 34’s ‘forum non conveniens’ rule were discussed.
Huawei China and ZTE China have commenced proceedings in China against Conversant, seeking to establish invalidity and (in the case of Huawei China only) non-infringement of Conversant’s Chinese patents. Conversant have inter alia sued Huawei China and ZTE China in Germany for infringement of its German patents.
Following Owusu, jurisdiction for infringement of UK patents against UK incorporated companies must lie and remain with the English courts per Article 4 B1a. As readers will remember from my review of Ferrexpo, the English courts for some time however have noticed with relish that the CJEU in Owusu did not entertain the part of the referral which asked it whether exclusive jurisdictional rules may apply reflexively – holding thereafter in the CJEU’s stead that they might so do (in a discretionary: not a slavish fashion: Floyd J here at 115).
At 95 ff Floyd J discusses the issues after having summarised the various representations made (see a summary of the summary by John de Rohan-Truba here), with much of the discussion turning on English CPR and jurisdictional rules, and reflexive application of Article 24(4) confirmed in principle, but not applied here. Requests to refer to the CJEU were summarily dismissed.
(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 220.127.116.11, Heading 18.104.22.168.
In  EWHC 466 (Fam) V v M, Williams J refused both an application for a stay on the basis of forum non conveniens of English proceedings in favour of proceedings in India, and an anti-suit injunction. Applicant mother is V and the respondent is the father M. They are engaged in litigation in England and in India in respect of their son. The English limb of the proceedings is the mother’s application for wardship which was issued on or about the 16 October 2018, and which includes within it application for the summary return of the child from India to England.
India is (obviously) neither a Brussels IIa party nor the 1996 Hague child Protection Convention. Brussels IIa contains a forum non-light regime (as Brussels Ia now does, too): see e.g. Child and Family Agency v J.D. Whether more general forum non is excluded following Owusu v Jackson per analogiam, has not reached the CJEU however as Williams J notes at 22 ‘the trend of authority in relation to the ‘Owusu-v-Jackson’ points towards the conclusion that the power to stay proceedings on forum non-conveniens grounds continues to exist in respect of countries which fall outside the scheme of BIIa or the 1996 Hague Child Protection Convention.’
Given that eventually he upholds jurisdiction of the English courts, the point is moot however may be at issue in further cases.
At 48 ff the various criteria for forum non were considered:
i) The burden is upon the applicant to establish that a stay of the English proceedings is appropriate.
ii) The applicant must show not only that England is not the natural or appropriate forum but also that the other country is clearly the more appropriate forum.
iii) In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. In evaluating this limb the following will be relevant;
a) The desirability of deciding questions as to a child’s future upbringing in the state of his habitual residence and the child’s and parties’ connections with the competing forums in particular the jurisdictional foundation
b) The relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice, judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case.
c) The convenience and expense to the parties of attending and participating in the hearing and availability of witnesses.
d) The availability of legal representation.
e) Any earlier agreement as to where disputes should be litigated.
f) The stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing.
g) Principles of international comity, insofar as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make.
h) The prospects of success of the applications.
iv) If the court were to conclude that the other forum was clearly more appropriate, it should grant a stay unless other more potent factors were to drive the opposite result; and
v) In the exercise to be conducted above the welfare of the child is an important (possibly primary), but not a paramount, consideration.
Conclusion is that on clear balance England is the natural and appropriate forum and India is not clearly the more appropriate forum.
At 50, the anti-suit injunction was considered premature (Williams J suggests that had it been a commercial matter, it may not have been): ‘Assuming that a stay application can be made and that some form of judicial liaison can be commenced to enable this court and the Indian court to work cooperatively to solve the riddle of competing applications in our respective courts, it is in my view wholly premature to grant such an injunction. That situation might fall to be reconsidered if no progress can be made and in particular if the father embarked upon a rear-guard action to play the Indian courts to delay the resolution of matters. However we are far from that position as yet.’
Note the comity considerations here, reflecting on the potential judicial co-operation between India and England, advanced here given the interest of the child (less likely for purely commercial cases, one assumes).