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PI and Civil Litigation

Law - practice - procedure

16 AUG 2013

A convenient forum? Non-European defendants before the English courts

Alexander Halban

Barrister, 3 Hare Court


It is now well established that the English court has jurisdiction in a claim brought by an English claimant against a foreign insurer domiciled within the EU in respect of an accident which occurred outside England: Odenbreit [2007] ECR I-11321.

However, the scope of the equivalent jurisdiction against insurers and other defendants domiciled outside the EU is still the subject of controversy. One of the possible ‘gateways' for jurisdiction in tort claims is where ‘damage was sustained within the jurisdiction' (CPR PD 6B para 3.1(9)). The meaning of those words has been discussed in two decisions handed down this summer: Wink v Croatio Osiguranje [2013] EWHC 1118 (QB) and Sylianou v Toyoshima [2013] EWHC 2118 (QB).

Decisions: damage sustained within the jurisdiction

In both cases, English tourists were injured in road traffic accidents whilst on holiday: in Wink in Croatia and in Stylianou in Australia. The claimants were repatriated to England, where they suffered the continued effects of their injuries and related economic loss. Liability was admitted in both cases and the only issue for trial was quantum. [1]

Both cases were effectively attacks on the two earlier decisions on the tort jurisdiction gateway: Booth v Philips [2004] EWHC 1437 (Comm), [2004] 1 WLR 3292 and Cooley v Ramsay [2008] EWHC 129 (QB).

The claim in Booth was brought by the widow of an English engineer who had died in an accident onboard a ship off the coast of Egypt. She claimed for loss of her dependancy and for funeral expenses, both of which arose in England. Nigel Teare QC (sitting as a Deputy High Court Judge) took the natural and ordinary meaning of ‘damage was sustained within the jurisdiction' and held that it meant ‘harm which had been sustained by the claimant, whether physical or economic'. He rejected the defendant's submission that it only referred to the damage which completed the cause of action (which would usually be the immediate injury).

Booth was followed in Cooley, a claim brought by an English claimant who was severely injured in Australia, where he had been working. He was initially treated in Australia but he was later flown back to England, to be cared for by his parents. Tugendhat J approved the reasoning in Booth, and held that pain and economic loss suffered by the claimant in England was sufficient to found jurisdiction.

In Wink, the defendant (represented by Sarah Crowther, a contributor to this portal) argued that the construction of ‘damage was sustained in the jurisdiction' in Booth and Cooley was incorrect and that the phrase should be construed narrowly. The defendant advanced a series of propositions in favour of this construction. First, that the natural meaning of ‘damage' was damage which completes the cause of action. Secondly, that only direct damage should be counted as establishing jurisdiction, for indirect damage was an uncertain basis for jurisdiction. Thirdly, a wider construction would offend against the rule that bases for exorbitant jurisdiction should be construed narrowly. Fourthly, the phrase should be read consistently with article 5(3) of the Brussels Regulation (EC 44/2001) on jurisdiction within the EU, which limited it to direct damage. Haddon-Cave J rejected these submissions. The first and third propositions, he said, were rejected in Booth and Cooley and were inconsistent with the clear wording of the CPR rule. The second was also rejected in Booth and indirect damage was not an uncertain basis for jurisdiction because the claimant still had to show that England was forum conveniens. As to the fourth, the CPR and Brussels regimes had different purposes and were structured differently, so that they would not necessarily be consistent.

Finally, in Stylianou, the claimant had issued proceedings in Western Australia, which were far advanced, in which the defendant had made interim payments. She then sought to issue proceedings in England, on the basis of damage in the jurisdiction, both pain and suffering, and economic losses. The defendant submitted that the decisions in Booth and Cooley no longer applied because they were decided before the Rome II Regulation (EC 864/2007) came into force, which had universal application in all claims; and that Regulation excluded indirect damage, thereby overriding the meaning in the CPR gateway. This was rejected by Sir Robert Nelson, because the Regulation concerned applicable law not jurisdiction, and did not override the CPR. In any event, Rome II defined ‘damage' broadly, including indirect damage (see article 2) and only provided a restricted definition, excluding indirect damage, for the purposes of ascertaining the applicable law under article 4. This was wholly separate from the issue of jurisdiction.

Decisions: forum conveniens

Once jurisdiction is established, the claimant must show that England is forum conveniens: the most appropriate place to bring the claim, for the interests of justice and the convenience of the parties. This requirement is designed as a limiting factor on excessively broad jurisdiction. In all four cases, England was found to be the appropriate forum.

In Booth, one defendant was domiciled in England and so the claimant had jurisdiction against him as of right and it was appropriate to try the claims against all parties together. The only other possible jurisdiction was Jordan (where the ship owners were domiciled), but there was little other connection to it. The court also doubted whether the defendants would submit to that jurisdiction either. The matter was treated as a question of justice, with little weight given to practical issues, such as the location of witnesses. In Cooley, there was a much clearer alternative forum, New South Wales, where the accident occurred, but England was still found to be the appropriate forum, largely for practical reasons: the claimant was handicapped by the accident and needed care in England and could also more conveniently deal with lawyers in England. The issues all related to quantum and the expert witnesses were all English.

The courts in Wink and Stylianou relied on the same reasons as in Cooley. Further, in Wink, the judge also found that, although the applicable law was Croatian law, the English court could determine Croatian law issues using expert evidence, and that it was unlikely than any disputes of law would arise. In Stylianou, the advanced stage of proceedings in Western Australia was an important factor in favour of that jurisdiction being forum conveniens. But, it was held that the defendant could be adequately compensated in costs, and that did not mean that  England was forum non conveniens.


In one sense, Wink and Stylianou simply confirm the existing authorities on the construction of ‘damage was sustained within the jurisdiction'. These authorities present a consistent picture in favour of ‘damage' covering any damage, whether physical or economic, including indirect damage. This is subject to any contrary decision by the Court of Appeal in Wink; the defendant has been granted permission to appeal, with a hearing due early next year.

However, in another sense, these two recent decisions, along with Cooley, represent a considerable broadening of the circumstances in which England will be found to be forum conveniens. The doctrine of forum conveniens is consistently held up as a counter-balance for the very wide jurisdiction given by the tort gateway. But in these cases it bears little weight, leading to a potentially exorbitant jurisdiction against foreign defendants.

In Booth there was no obvious alternative forum: the accident happened onboard a ship in Egypt and the connection with Jordan was weak at best, so that it is less surprising that England was the appropriate forum. But in the other three cases there was a clear alternative jurisdiction: the place where the accident occurred. In each case, the issue was decided almost exclusively by practical questions. The claimants' presence and medical treatment in England was an important factor: however they were all resident in England and were injured while on holiday or temporary stays abroad, so it was natural that they would be repatriated to England. If that alone were sufficient, then any English claimant could always establish English jurisdiction wherever he or she were in the world, simply by returning home. The location of the expert witnesses also should not be determinative: for they are chosen by the claimants' English solicitors.

In all three cases there was citation of authorities which suggested that claims should generally be tried in the place where the alleged tort took place, but little weight was apparently given to such decisions. For instance, in The Albaforth [1984] 2 Lloyd's Rep 94 at 96 Goff LJ said: ‘If the substance of an alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other fact could displace the conclusion that the courts of that jurisdiction are the natural forum' (cited in Dicey, Morris and Collins (15th ed.) at para. 11-217, a passage cited in Stylianou). All the necessary elements of the tort in each case, including the immediate injury, took place in the foreign jurisdiction (the damage in England was only indirect or subsequent damage), and it seems that there was no special fact to justify the displacing of the conclusion. The existence of additional damage in England is enough to found jurisdiction, but it should not make England the most appropriate forum.

Similarly, in VTB Capital plc v Nutritek International Corp [2013] UKSC 5 at para. 46 Lord Mance observed that ‘it is generally preferable, all things being equal, that a case should be tried in a country whose law applies'. This was cited in Wink, but the answer given was that there were unlikely to be any significant issues of foreign law in the case, or ones which could not be determined with expert evidence. That may be true practically, but, with respect, that does not consider weight to the principle that judges of a particular state are best placed to determine the law of that state.

Of course, it may be said that no injustice was done in any of these cases. The claimants were severely injured in all cases but Booth and the defendants were insurance companies who had sufficient resources to litigate a case in England as well as in their own states. In all cases but Booth, liability was admitted so that the quantum trial depended more on the claimants' present circumstances in England, rather than the facts of the original accident. The decision on forum conveniens may well still be different in a case where liability is in dispute and there is a clear alternative forum. Moreover, in Wink and Stylianou, the assessment of damages was governed by the applicable law under article 15 of Rome II (rather than English law, as was the position previously) so there was no disparity in the damages to be awarded had the case been tried in the foreign jurisdiction. [2]

However, if this approach to forum conveniens were continued against non-insurer defendants, it would represent a considerable broadening of English jurisdiction. Where a claimant has been injured abroad, has returned to England, and has appointed experts in England, it seems that there are now few factors sufficient to allow the foreign defendant to be sued in his or her own jurisdiction, rather than England. The Odenbreit jurisdiction in the EU only applies to foreign insurers, not other defendants. In contrast, this approach to CPR jurisdiction has no such limitation, and it may establish English jurisdiction over a far wider range of foreign defendants, insurers and non-insurers alike.


[1] Croatia became a member of the EU on 1 July this year, but the accident in Wink occurred before then and so jurisdiction was determined under the CPR.

[2] There was some difference in Stylianou, since Western Australia sets a higher discount rate for early receipt of future losses than England, leading to a higher award in England.

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