Posts Tagged Spiliada

KMG International v Chipper: Textbook forum non conveniens.

A flag simply to lead readers to a recent textbook application of Spiliada forum non conveniens authority: Moulder J in [2018] EWHC 1078 (Comm) KMG v Chipper.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5

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Chinachem: Forum non conveniens, non-exclusive choice of court and concurrent proceedings in Hong Kong and Mainland China.

I reported earlier on the waiver of privilege issues in Chinachem. The Hong Kong High Court has now also ruled on the issue of application of forum non conveniens in the event of concurrent proceedings in Hong Kong and mainland China. In a lengthy judgment (particularly resulting from extensive summary of counsel arguments but also of relevant precedent), Ng J recalls English precedent on forum non conveniens (Spiliada evidently being featured) and the way in which said precedent has been applied in Hong Kong. (Carrie Tai has excellent overview here).

Contract between the parties included choice of court and choice of law as follows: ‘This Agreement shall be governed by the laws of Hong Kong and it shall be construed by the laws of Hong Kong. Both parties agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.’

Ng J in the end rejects all arguments suggesting a stay in favour of the mainland proceedings. In doing so, she confirmed the tendency of Hong Kong courts (like indeed their English common law counterparts) to only brush aside choice of court in exceptional circumstance. Even if that choice of court is, such as here, non-exclusive. The concurrent proceedings stand.

Geert.

 

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The High Court accepts jurisdiction in ‘Safari users’ [Vidal-Hall et al v Google] case. European privacy rules bolstered?

[Postscript 26 august 2015: the UKSC granted Google leave to appeal on 28 July 2015]

[Postscript 27 March 2015: today the Court of Appeal confirmed the High Court ruling. Emma Cross has immediate analysis here.]

In Vidal-Hall et al v Google Inc, the High Court assessed its jurisdiction against Google Inc and found no reason to apply forum non conveniens. Google UK was not involved, the Jurisdiction Regulation (44/2001) does not apply.

Claimants allege that Google misused their private information, and acted in breach of confidence, and/or in breach of the statutory duties under the Data Protection Act 1998 s.4(4) (“the DPA”), by tracking and collating, without the claimants’ consent or knowledge, information relating to the claimants’ internet usage on the Apple Safari internet browser. Applying the Spiliada criteria, Tugendhat J first of all dismissed the relevance of the location of documents, serving Google a dose of its own medicine: ‘In any event, in the world in which Google Inc operates, the location of documents is likely to be insignificant, since they are likely to be in electronic form, accessible from anywhere in the world. ‘ ‘By contrast, the focus of attention is likely to be on the damage that each Claimant claims to have suffered. They are individuals resident here, for whom bringing proceedings in the USA would be likely to be very burdensome (Google Inc has not suggested which state would be the appropriate one). The issues of English law raised by Google Inc are complicated ones, and in a developing area. If an American court had to resolve these issues no doubt it could do so, aided by expert evidence on English law. But that would be costly for all parties, and it would be better for all parties that the issues of English law be resolved by an English court, with the usual right of appeal, which would not be available if the issues were resolved by an American court deciding English law as a question of fact.’ (at 132-233)

Forum non conveniens dismissed – the case can go ahead.

The judgment, in reviewing the prima facie case on the merits, also bolsters the existence of a tort of ‘misuse of private information’ and surely adds to the growing authority of European-based data protection rules.

(On an aside, note the rather delightful observation by Tugendhat J (at 56) that ‘civil law jurisdictions have managed to develop civil liability for breaches of an obligation of confidence in relation to personal information without the benefit of a historical equivalent of the law of equity.’).

Geert.

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