ANDREW OWUSU v (1) NUGENT B JACKSON (2) MAMMEE BAY RESORTS LIMITED (3) MAMMEE BAY CLUB LIMITED (4) THE ENCHANTED GARDEN RESORTS & SPA Ltd (5) CONSULTING SERVICES LIMITED (6) TOWN & COUNTRY RESORTS LIMITED [2002] EWCA Civ 877

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION Judge Bentley QC, sitting as a deputy high court judge
[2002] EWCA Civ 877Case No Case No: B3/2001/2376, B3/2001/2388, B3/2001/2400, B3/2001/2400AVenue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
ANDREW OWUSUClaimant/ Respondent(1) NUGENT B JACKSON (2) MAMMEE BAY RESORTS LIMITED (3) MAMMEE BAY CLUB LIMITED (4) THE ENCHANTED GARDEN RESORTS & SPA Ltd (5) CONSULTING SERVICES LIMITED (6) TOWN & COUNTRY RESORTS LIMITEDAppellants/ Defendants
Before
Lord Justice BrookeLord Justice LathamMr Justice HartColin Thomann (instructed by Myers Fletcher & Gordon) for the First DefendantChristopher Strachan (instructed by Saunders & Co) for the Third DefendantStephen Grime QC (instructed by Lovells) for the Fourth & Sixth DefendantsRichard Plender QC & Philip Mead (instructed by Russell Jones & Walker) for the ClaimantDate 19 June 2002
[1]INDEX Part No. Para No 1 Introductory 1 2 The Facts 2 3 The Procedural History 8 4 The evidence 12 5 The judgment of Judge Bentley QC 19 6 The appeal to this court 22 7 Issues of English Law:(i) CPR 6.21(4) 23(ii) The delivery of the judgment at Sheffield 24(iii) Forum Conveniens 29(iv) Joinder of the Jamaican defendants 31 8 Issues of Jamaican law 33 9 The issue of Community law: Introductory 37 10 The issue of Community law: the defendants’ arguments 48 11 The issue of Community law: the claimant’s arguments 50 12 The reference to the European Court of Justice 59 Lord Justice Brooke : This is the judgment of the court. 1. Introductory This is an appeal by the first, third, fourth and sixth defendants (whom we will call D1, D3, D4 and D6) against an order of Judge Bentley QC sitting as a deputy high court judge at Sheffield on 16th October 2001 whereby he dismissed D1’s application for a stay of the action, D3’s application for an order that the court should not exercise its jurisdiction to grant permission to serve these proceedings outside the jurisdiction of the English court, and the application by D4 and D6 (who are jointly represented) contesting the jurisdiction of the court under CPR Part 11. D2 and D5 have not been served with the proceedings. 2. The Facts[2]Both the claimant Andrew Owusu and the first defendant, Mr N B Jackson (trading as Villa Holidays Bal-Inn Villas), are domiciled in England. The other five defendants are limited liability companies domiciled in Jamaica. The action arises out of a very serious accident to Mr Owusu when he was bathing in the sea on a holiday in Jamaica on 10th October 1997. He walked into the sea, and when the water was up to his waist he dived in, and struck his head against a submerged sand bank which constituted a concealed hazard. He sustained a fracture of his fifth cervical vertebra which rendered him tetraplegic.[3]The involvement of the defendants who are parties to this appeal comes about in the following way. Mr Owusu’s claim against D1 is in contract. He rented a two-bedroomed holiday villa at Mammee Bay, Jamaica, from D1. The contract provided that he would have access to a private beach, and he maintains that it was an implied term of this contract that the beach would be reasonably safe or free from hidden dangers.[4]D3, the Mammee Bay Club Ltd, own the foreshore of Mammee Bay, a beach which is close to this villa. They supplied Mr Owusu with a free beach pass, and in effect he brings his action against them in tort as owners and occupiers of the beach. We were told by the claimant’s advocate that we could disregard the claim against them in contract.[5]D6, Town and Country Resorts Ltd, operate a large hotel called The Enchanted Garden adjoining the beach. They have been granted a licence to use the beach subject to a condition that they should be responsible for the management, upkeep and control of the beach during the term of their licence.[6]D4, The Enchanted Garden Resorts and Spa Ltd, operate a holiday complex close to Mammee Bay. Their guests were also licensed to use the beach. D4 and D6 are associated Jamaican companies. Mr Owusu’s claim against them lies in tort.[7]After Mr Owusu had his accident, it came to his advisers’ attention that another English holiday-maker, Alexandra Rickham, had had a similar accident two years earlier in which she, too, was rendered tetraplegic. His claim in tort against the Jamaican defendants therefore embraces not only a contention that they failed to warn swimmers of the hazard constituted by the submerged sand bank but also a contention that they failed to heed the previous injury to Alexandra Rickham. She is pursuing an action for damages in the courts of Jamaica which is due to be tried in June 2002. In her case there was no potential defendant domiciled in England. 3. The Procedural History[8]These proceedings were started by a claim form issued out of the Sheffield District Registry of the High Court on 6th October 2000. They were served on D1 in England, and on 12th December 2000 Deputy District Judge Beevers granted permission to the claimant to serve the proceedings on D2-D6 at their residence in Jamaica. This order was made without notice pursuant to CPR 6.20(3) which provides that:
“6.20 In any proceedings to which rule 6.19 does not apply, a claim form may be served out of the jurisdiction with the permission of the court if – … (3) a claim is made against someone on whom the claim form has been or will be served and – (a) there is between the claimant and that party a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”
[9]The English courts have interpreted the words “proper party” as including any person who may be joined in proceedings in accordance with the rules as to joinder of parties ( Massey v Haynes [1881] 21 QBD 330). CPR 7.3 provides in this context that “A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.”[10]D1 was served in England, and he is at present the only defendant to have served a defence. So far as is material he avers:
“(1) that although it was an implied term of his agreement with Mr Owusu that the accommodation he supplied would be reasonably safe, there was no such term in relation to the beach; (2) that Mr Owusu wholly caused or contributed to his injuries by his own negligence, particulars of which are set out.”
[11]D3, D4 and D6 were served with the proceedings in Jamaica. On 11th April 2001 D4 and D6 made an application pursuant to CPR 11(1)(b) for a declaration that the court should not exercise its jurisdiction in relation to the claim against them, and for consequential orders that the service of the claim form be set aside and that the action against them be stayed. On 8th May 2001 D3 made an application which was in substance to similar effect, although in form it also sought a direction that the deputy district judge’s jurisdiction to give leave to serve the proceedings out of the jurisdiction should be set aside because D3 was prejudiced by such an order. CPR 11(1) provides that:
“11(1) A defendant who wishes to (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction, may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.”
CPR(11)(b) gives the court on such an application the power to make orders of the type sought by D3. 4. The evidence[12]The application by D4 and D6 was supported by a witness statement by their English solicitor. He exhibited some photographs of the beach and its surrounds and said that from his clients’ initial investigation he believed that Mammee Bay was a gently shelving beach of a kind which must be extremely common throughout the holiday and resort areas of the Caribbean. He suggested that the beach was obviously a natural beach where as a matter of common sense variations in the depth of water and the occasional presence of sand bars or banks would be expected.[13]After setting out information relating to the role of the various Jamaican defendants in relation to the beach, he said (in paras 19 and 20 of his witness statement):
“19 On behalf of the Fourth and Sixth Defendants I would suggest that it is obvious that Jamaica provides the natural and appropriate forum for the trial of the Claimant’s action. The features which connect the action with Jamaica are entirely obvious but those of greater significance are: (1) save for the First Defendant, all other Defendants are resident in Jamaica and carry on their respective businesses there; (2) apart from any contract between the Claimant and the First Defendant, the contractual arrangements involving the Second to the Sixth Defendants were presumably all made in Jamaica and would be subject to Jamaican law; (3) any duty which either the Fourth or the Sixth Defendant may have owed either as occupiers of the beach at Mammee Bay (if they were occupiers) or in any other capacity would be the duty imposed by the law of Jamaica; (4) the question of breach of any duties imposed by the law of Jamaica would, presumably, be considered in a Jamaican court with particular reference to and knowledge of the prevailing customs and standards applied to tourist resorts and beach use in Jamaica and under Jamaican conditions; (5) save for the Claimant, all witnesses to the circumstances of the accident of which I am aware (specifically the duty security officer and the beach club manager) are employed in Jamaica; (6) information as to the alleged previous accident in 1995 to Alexandra Rickham is also likely to come from Jamaican sources; (7) witnesses who will be able to provide information as to the use and operation of the beach at Mammee Bay are highly likely to be Jamaica-based; (8) investigation into the precise circumstances of the accident and the topography of the beach and the under water area will involve detailed and careful consideration of the physical circumstances of the beach which can best be undertaken in Jamaica. This is a particular consideration where the accident is said to have been caused by the presence of a sandbank which would ordinarily be a variable feature subject to influence of winds and tides. 20. I believe that the courts of Jamaica are likely to follow similar general principles to those of England and Wales although I have no doubt that there will be differences of approach and application. However, I have no reason to think that a claim of this nature could not be disposed of justly under Jamaican law.”
[14]D3’s application, for its part, was supported by a witness statement by its English solicitor. He said, quite briefly, that because the relevant events occurred in Jamaica and witnesses were resident there, the court should not exercise its jurisdiction to permit Mr Owusu to litigate his claim in England rather than in Jamaica. He pointed to one matter of real prejudice to D3, which appeared to relate to the extent of its insurance cover.[15]D1 then applied for a similar order under CPR 11.1 on the ground that the matters in question in these proceedings were most closely connected to Jamaica. He, too, had a problem with the extent of his insurance cover, which did not cover compensation for damages in respect of judgments obtained in the first instance otherwise than by a court of competent jurisdiction within Jamaica. He pointed out that the relevant contract related to the supply of accommodation in Jamaica. His client, who was a builder, had built some villas on plots of land in his ownership within the Mammee Bay complex. He employed a manageress, a groundsman and a maid to look after his villas, and as the villas were within the Mammee Bay complex anyone staying there was entitled to use the beach and other facilities. He said, quite briefly, that in view of the fact that the services were exclusively in Jamaica, the contract itself was most closely connected to Jamaica. All the other defendants were in Jamaica and all the witnesses his client would wish to call were resident in Jamaica. He understood that the issues of liability and quantum would be determined in much the same way under Jamaican law as they would in England.[16]Mr Owusu’s solicitor responded to all this evidence in his own witness statement. He said his client had entered a buoyed off area of the water off the beach to a depth of approximately waist high. He had then dived forward and hit his head on a sandbank. He said that the accident occurred in the late afternoon when no lifeguards were present. He described the circumstances of Miss Rickham’s earlier injury and exhibited the pleadings in her action. He then joined issue with the points made by the solicitor for D4 and D6 which tended to favour Jamaica as the appropriate place where his client’s case should be tried. One new substantive point that he made was that two of his client’s witnesses, namely Mr Owusu himself and Miss Rickham, had suffered significant injuries and it would be difficult for them to travel to Jamaica, and that all the witnesses in relation to causation and quantum resided in the United Kingdom.[17]He exhibited to his witness statement the documentary material placed before the deputy district judge the previous December. This included the results of investigations which his client had caused to be made. These also revealed that there was a natural reef running several metres from east to west a few metres offshore, and that sand banks formed a few feet from the reef at low tide, receding as the tide went out.[18]This evidence prompted a witness statement from the manager of the Enchanted Garden Hotel. He gave more details of the reef and the very limited shallow swimming area before the reef was reached about 30 feet from the shoreline. Swimmers could see the reef and they could also see the bottom of the shallow swimming area. He said that a sign “No Diving Shallow Water” had been erected after Mr Owusu’s accident. His company did not believe they were under any obligation to erect the sign, because it was self-evident that persons should not dive into shallow water, but they were becoming exasperated with the stupidity of people who wanted to dive into the water. He did not know of any other hotels that had signs on their beach warning swimmers about the dangers of diving into shallow water, as the dangers were self-evident. 5. The judgment of Judge Bentley QC[19]The judge said that in UGIC v Group Josi Reinsurance Co SA (Case No C-412/98) [2001] QB 68 the European Court of Justice held that the question whether the jurisdictional rules in the Brussels Convention applied to a dispute in principle depended upon whether the defendant had its seat or domicile in a contracting state, and that the Convention applied to a dispute between a defendant domiciled in a contracting state and a claimant domiciled in a non-member country. He said that if the European Court of Justice’s construction of the Convention was correct it would appear to follow that the decision of this court in Re Harrods (Buenos Aires) Ltd [1992] AC 72 was bad law. He had no power to refer this question to the European Court himself, and in the circumstances he felt bound to determine the question as to whether he had jurisdiction to stay the proceedings against D1 in accordance with the principles laid down by that court in Group Josi . Following the opinion clearly expressed by the court in that case, particularly at paragraphs 59 to 61 of its judgment, he was driven to the conclusion that it was not open to him to stay the action as against D1.[20]He said that no Brussels Convention point arose in the cases of D3, D4 and D6. They all contended that Jamaica was the forum with which the action had the most real and substantial connection and that it was clearly a more appropriate forum than England. D1 agreed with this submission. The judge then summarised, quite briefly, the submissions he had received from the various parties. He said that but for the fact that he was precluded by the Brussels Convention from staying the action against D1, he would have no hesitation in holding that Jamaica was a more appropriate forum than England.[21]He was driven, however, to the conclusion that England and not Jamaica was the appropriate forum. He could not stay the action against D1 here, and he said that in these circumstances if he granted the other defendants a stay the likelihood was that courts in the two jurisdictions would end up trying the same factual issues upon the same or similar evidence, with the possibility that they might reach different conclusions. He therefore refused the applications of D3, D4 and D6. 6. The appeal to this court[22]The appeal to this court raises a number of questions of English law, and it also obliges us to consider the effect of Jamaican law on the recognition and enforcement of English judgments. In addition, it raises a point on the proper interpretation of the Brussels Convention which we are referring to the European Court of Justice in accordance with Article 2(2) of the 1971 Protocol to that Convention (for which see Schedule 2 to the Civil Jurisdiction and Judgments Act 1982). 7. Issues of English law: (i) CPR 6.21(4)[23]We can dismiss quite quickly the suggestion that the judge did not have power to excuse the failure of the deputy district judge to include in his order the timetable required by CPR 6.21(4). There was no evidence that any of the Jamaican defendants were prejudiced by this failure, which was a failure not of the claimant, but of the court, and CPR 3.10 gave the judge ample power, if he saw fit to use it, to remedy this error. (ii) The delivery of the judgment at Sheffield[24]The next problem, on which we are not required to make a ruling, arose because the judge used an unorthodox method of delivering his reserved judgment. The hearing ended on 11th October 2001 and the judge initialled and dated his reserved judgment on 16th October. He then passed it to the officers of the court so that they could draw up and seal his order, which was perfected on 19th October. The judgment and order were then posted to the parties’ solicitors, who received it on 24th October.[25]It is hardly surprising that this procedure caused difficulties in relation to the computation of time for appealing. CPR 52.4(2) prescribes that where the lower court makes no relevant order, the appellant must file the appellant’s notice within 14 days after the date of the decision of the lower court that the appellant wishes to appeal. This means the date when the judge makes his decision, and not the date when the order reflecting his decision is drawn up. See Sayers v Clarke Walker [2002] EWCA Civ 645 at [5].[26]The judge was sitting in public, and it was his duty to give judgment and make his judgment available to the parties in public. Time for appealing will then run from the time he communicates his decision to the parties (other than in draft form, following the modern procedure discussed in Prudential Assurance Co Ltd v McBains Cooper (A Firm) [2000] 1 WLR 2000 ). If he sends his written judgment to the parties in draft, and they are able to agree the consequential orders, he may be able to excuse their attendance when he delivers the judgment formally in court, thereby making it available to the public and the media (if interested), but he cannot dispense completely with the formality of handing down his judgment in open court. Time for appealing will then start to run.[27]We believe that it would be helpful if a Practice Direction were made which formalises this procedure, particularly in relation to part-time judges. Until such a Practice Direction is prepared and issued, it will be sufficient for us to indicate that if a part-time judge has sent a reserved written judgment to the parties in draft, and they have agreed upon any necessary consequential orders and filed them at the relevant court office, so that he is satisfied that nobody need attend when the judgment is formally handed down in court, he may make arrangements with another judge of the same court to hand the judgment down if it is inconvenient for him to return to the court for that purpose. Needless to say, a full-time judge may make similar arrangements if he is unavoidably absent from his court for any reason and he cannot hand down his judgment elsewhere.[28]On the present occasion, time for appealing was formally extended, so that we were not obliged to make a ruling on the point. (iii) Forum Conveniens[29]So far as the issue of forum conveniens is concerned, we are satisfied that the judge’s conclusion on this point was well within the wide ambit of his discretion. Mr Plender QC, who appeared for the claimant, suggested that he ought to have given his reasons at rather greater length. He said, for instance, that the judge ought to have given more weight to the considerations urged on him in his solicitor’s witness statement. He placed particular weight on the problems his client and Miss Rickham would face if they have to travel to Jamaica for the trial and on his contention that his contract with D1 was governed by English law.[30]In Spiliada Maritime Corporation v Consulex Ltd [1987] 1 AC 460, in a speech with which Lord Griffiths and Lord Mackay of Clashfern expressly agreed, Lord Templeman said that appeal against decisions of this kind would be rare and that appellate courts should be slow to intervene. The judge made express reference to these points (although he did not refer in terms to Miss Rickham) when he said he would have no hesitation in identifying Jamaica as a more appropriate forum than England. We do not find it necessary to decide whether the very simple contract with D1 was governed by English or Jamaican law. (iv) Joinder of the Jamaican defendants[31]Finally, so far as English law is concerned, we consider that it would be better to defer consideration of the appeals of D3, D4 and D6 against their joinder in these proceedings until we receive the answer of the European Court of Justice to the question we have referred to it. We have set out the terms of CPR 6.20(3) in paragraph 8 above. When the case is returned to us, we shall have to consider in the light of the answers we receive:(i) whether there is between the claimant and D1 a real issue which it is reasonable for the English court to try; and(ii) if the answer to (i) is “yes”, whether D3, D4 and D6 are necessary or proper parties to that claim.[32]We mention the first point, on which we have not yet heard any argument, merely to draw attention to the fact that the wording of the modern rule reflects the earlier jurisprudence whose effect is summarised in note 6.21.28 on page 156 of the Spring 2002 edition of Volume of the White Book Service 2002. There will not be a “real issue which it is reasonable for the court to try” if the claimant “has no real prospect of succeeding” on that issue. This introduces the language of CPR 24.2(a)(i), and this court has held that “real” in that context is to be contrasted with “fanciful” ( Swain v Hillman [2001] 1 All ER 91 at [10]). 8. Issues of Jamaican law[33]If the European Court of Justice upholds the claimant’s submissions as to the meaning of Article 2 of the Brussels Convention, and if we are satisfied that the claimant has raised a real issue in his claim against D1 which it is reasonable for the court to try, we would then have to consider the effect of the Jamaican rules on the reciprocal enforcement of judgments when deciding whether it was proper to join them to the English proceedings in circumstances in which an English court would ordinarily have considered Jamaica to be the more appropriate forum.[34]In Jamaica the position is governed by Part I of the Judgments (Foreign) (Reciprocal Enforcement) Act and the Reciprocal Enforcement of Foreign Judgments Order 1936. Section 4 of this Act, as extended by the Order, provides, in effect, a procedure whereby a judgment in a superior court in England and Wales may be registered and enforced in Jamaica. It is sufficient for present purposes to note the terms of section 6(2)(a) of that Act, to which the defendants have drawn our attention, by which the English High Court is deemed, in effect, to have had jurisdiction in a number of different circumstances. The only relevant circumstance appears to be set out in section 6(2)(a)(i) which relates to a case in which the judgment debtor submitted to the English jurisdiction by voluntarily appearing in the proceedings otherwise than for contesting the jurisdiction of the Court. We did not hear full argument on the effect of this provision which was drawn to our attention shortly before we handed down this judgment.[35]We mention this point at this stage so that the European Court of Justice may understand some of the practical difficulties which the courts of a member state which applies forum conveniens principles may encounter in their normally harmonious relationships with the courts of non-member states in cases where no other member state is involved if the claimant’s strict interpretation of Article 2(i) of the Brussels Convention is correct. In particular, it may possibly lead to a situation in which the courts of a member state and the courts of a non-member state may try the same lis on the same or similar evidence and reach conflicting conclusions.[36]We were requested by Mr Grime QC, who appeared for D4 and D6, to refer to the European Court of Justice questions which turn on our interpretation of CPR 6.20. We decline to do so. That court will not be concerned with the interpretation of a procedural rule of a national court. It will be for this court to decide on the proper interpretation of its own rule once it has received the authoritative guidance on the interpretation of the Brussels Convention which we now seek. 9. The issue of Community law: Introductory[37]Article 220 of the Treaty required member states to enter into negotiations with each other, so far as was necessary, with a view to securing fair results for the benefit of their nationals. These results included:(i) The protection of persons and the enjoyment and protection of rights under the same conditions as those accorded by each state to its own nationals;(ii) The simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards.[38]The preamble to the Brussels Convention referred expressly to the desire of the member states to implement the provisions of Article 220 in relation to the second of these aims. It also reflected their anxiety to strengthen in the Community the legal protection of persons therein established and recorded that they considered:
“that it is necessary for this purpose to determine the international jurisdiction of their courts, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements.”
[39]The jurisprudence of the European Court of Justice has now established that whenever a question arises as to which of the courts of member states is to have jurisdiction when there might be more than one candidate from within the member states for this purpose, the solution must be sought in the language of the Convention. In Case No C-51/97 Réunion Européene [1998] ECR I-6511 , the court said (at para 16):
“It is settled case-law that under the system of the Convention, the general principle is that the courts of the Contracting State in which the defendant is domiciled are to have jurisdiction and that it is only by way of derogation from that principle that the Convention provides for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another Contracting State. Consequently, the rules of jurisdiction which derogate from that general principle cannot give rise to an interpretation going beyond the cases envisaged by the Convention.”
[40]In Case No C-412/98 UGIC v Group Josi Reinsurance Company , the court was concerned with a case in which the plaintiffs, a Canadian company, were domiciled in a non-member state, and there was a dispute whether the Belgian defendants should be sued in France (where the claimants’ brokers were domiciled) or in Belgium (the place of the defendants’ domicile). The court (at para 33) rephrased the first question posed by the Cour d’Appel, Versailles as seeking to ascertain whether the rules of jurisdiction laid down by the Convention applied where the defendant had its domicile or seat in a contracting state, even if the plaintiff was domiciled in an non-member state. Its answer (in para 61) was in the affirmative. The court added:
“It would be otherwise only in exceptional cases where an express provision of the Convention provides that the application of the rule of jurisdiction which it sets out is dependent on the plaintiff’s domicile being in a contracting state.”
[41]The situation which confronts us is a different one. It has not been suggested that the courts of any other member state might be involved. The competing jurisdictions are England (a member state) and Jamaica (a non-member state). If, as the claimant submits, the language of Article 2 is mandatory even in this context, D1 would have to be sued in England, in the courts of his domicile, and it would not be open to the claimant to sue him in Jamaica, where the harmful event occurred, because Jamaica is not another contracting state (see Article 5(3)), and it is not permissible to create an exception to the rule in Article 2 unless express provision is made to that effect in the Convention.[42]This is not a matter on which the European Court of Justice has ever made a ruling. Two different Advocates-General have expressed different opinions on the question. In Case No C-129/92 Owens Bank [1994] ECR I-117 Advocate-General Lenz (at para 32 of his opinion) expressed reservations about subscribing to the Commission’s view that the Convention was not applicable to proceedings having a connection with non-contracting states. On the other hand, Advocate-General Darmon in Case No C-318/93 Brenner and Noller [1994] ECR I-4275 said (at para 10 of his opinion) that the Brussels Convention was not intended to regulate jurisdictional disputes which might arise between courts in a contracting state on the one hand and those in a non-contracting state on the other. See also paragraph 16 of his opinion in Case No C-89/91 Shearson Lehman Hutton [1993] ECR I-139 .[43]The Jenard report appears to be of no direct assistance because none of the six original member states subscribed to the doctrine of forum conveniens . Professor Schlosser, on the other hand, although he obliquely addressed the issue in paras 76-78 of his report, cast no very clear light on the solution to the present problem. While observing that the law in the United Kingdom and in Ireland had evolved judicial discretionary powers in certain fields concerned with the jurisdiction of their courts, he explained why it was considered unnecessary to introduce a formal adjustment of the Convention to cover the point. To meet one of the difficulties he mentioned (in para 78), Article 3 of the Convention was amended to provide that three provisions of the law of the United Kingdom (including the rule that enables jurisdiction to be founded on personal service on a defendant during his temporary presence in the United Kingdom) were not to be applicable as against persons domiciled in a contracting state.[44]In his book entitled Competence Judicaire et Effets des Jugements dans le Marche Commun, Professor Droz directly addressed the question whether the courts of a member state could decline jurisdiction on the grounds of lis alibi pendens when the courts of a non-member state were already properly seised with proceedings in which the domiciliaries of no other member state were involved. Although Articles 21 to 23 of the Convention were not in point, Professor Droz observed how difficult it would be if the courts of a member state felt obliged to dishonour a Convention made with a non-member state which provided for the principle of lis pendens . He added (at para 329):
“Even in the absence of any treaty, it is not easy to see why States whose general principles of law contain a principle of lis pendens should not be free to respect it so as to realise, in their general international relations, the good administration of justice that the Brussels Convention seeks to achieve within the Community.”
[45]The present case is concerned with the doctrine of forum conveniens , when applied as between a member state and a non-member state. But it might just as easily have been concerned with the doctrine of lis alibi pendens , or “prorogation of jurisdiction”, or the rule that disputes concerned with rights in rem over immovable property should be heard in the state where the property is situated, or any of the other situations for which the Brussels Convention provides discretionary or mandatory exceptions (in Sections 2 to 6 of Title 2 of the Convention). If article 2 is mandatory, then a defendant domiciled in England must be sued in England in all such cases even if the Convention would allow or require the action to be brought in the courts of another member state if a domiciliary of another member state was involved.[46]The courts of two of the member states, like two of the Advocates-General, have reached different conclusions on the issue before us. In the Netherlands the Supreme Court held in van der Eist v Pierson, Heldring & Pierson NV , 22 December 1989 No 13718, that it had no power to stay proceedings between two Dutch domiciliaries in favour of proceedings pending between them in respect of the same subject-matter in a non-contracting state (Switzerland). It said that there was no rule of law, and no convention, pursuant to which it should decline jurisdiction. It does not appear, however, to have considered in this context Article 2 of the Brussels Convention, and the doctrine of forum conveniens does not form part of the law of the Netherlands.[47]A different view has been adopted in the courts of England. The governing authority is the decision of the Court of Appeal in In re Harrods (Buenos Aires) Ltd [1992] Ch 72. This decision has been followed by this court in subsequent cases. In the most recent, Ace Insurance Company v Zurich Insurance Company [2001] 1 Lloyds Rep 618 , a case arising from the identical language of the Lugano Convention, the court held (at para 42) that it was bound to follow In re Harrods. Although appeals have been allowed to proceed to the House of Lords in both these cases, the underlying dispute was settled on each occasion before the House of Lords ruled on the matter. On the first the House of Lords referred the question to the European Court of Justice, but the reference was aborted when the parties settled their dispute. 10. The issue of Community law: the defendants’ arguments[48]The defendants’ arguments, therefore, are largely founded on the judgments of the Court of Appeal in In re Harrods , supplemented by obiter observations by the same court in Haji-Ioannou v Frangos [1999] 2 Lloyds Rep 337 , 345-348. Dillon and Bingham LJJ in In re Harrods considered that they were entitled to apply the doctrine of forum conveniens to a dispute involving a domiciliary of only one member state for reasons which we will summarise below. These propositions reflect, in summary form, the reasons of Dillon LJ at pp 96A, 96B, 96D-F, 97A-B, 97B-G and 97G-98A; and the reasons of Bingham LJ at 100E, 101G-102A and 103A-C. They run along the following lines:(1) It is difficult to give much weight to the Jenard and Schlosser reports because they appear not to have had this question in contemplation;(2) Even at the time of the Schlosser report, the English doctrine of forum conveniens was considerably less developed than it later became:(3) The common basis of jurisdiction in the international order in the matters which fell within the scope of the Convention did not apply worldwide, since under Article 4 if a defendant was not domiciled in a contracting state the jurisdiction of each contracting state was to be determined by the national law. In those circumstances the desideratum expressed in paragraph 78 of the Schlosser report, namely that a plaintiff must be sure which court had jurisdiction was obviously not met.(4) For the English court to refuse jurisdiction in favour of the courts of a non-contracting state on forum conveniens grounds does not impair the object of the Convention since ex hypothesi there will then be no judgment of the English court to be enforced in the other contracting states.(5) If Article 2 of the Convention is mandatory the English court would have to assume jurisdiction to entertain an action against a person domiciled in England, even if the lis was pending in the courts of a non-contracting state or where there is an exclusive jurisdiction clause in a contract conferring jurisdiction on a non-contracting state. Such results would be contrary to the intentions of the Convention.(6) Since the Convention is merely an agreement between the contracting states among themselves, its framework would not be destroyed if the English court possessed a jurisdiction to refuse jurisdiction, on forum conveniens grounds, in favour of the courts of a non-contracting state in a case with which no other contracting state is in any way concerned.(7) The Jenard report (at p 13) made clear that there was a clear and fundamental distinction between the position of the Community-based defendant and the defendant domiciled elsewhere.(8) Except for one isolated (and perhaps irrelevant) reference to a convention between France and Switzerland on page 14, the Jenard report contains no reference to any convention between any contracting state and any non-contracting state. This is understandable if in the absence of any conflict or potential conflict of jurisdiction between contracting states the Brussels and Lugano Conventions have no role.(9) The Brussels Convention was intended to regulate jurisdiction as between the contracting states. The contracting states were setting up an intra-Convention mandatory system of jurisdiction.[49]In Haji-Ioannou v Frangos [1999] 2 Lloyds Rep 337 Lord Bingham CJ, giving the judgment of the Court of Appeal, said (at pp 347 and 348) that:(1) In appropriate circumstances recognition of a power to stay or dismiss proceedings on forum non conveniens grounds might promote that due administration of justice which must be the ultimate and paramount concern of all contracting states;(2) It is open to a court in England, as in Scotland, to dismiss proceedings when it declines jurisdiction on forum non conveniens grounds, and thus to be disseised of proceedings which it considers should more conveniently be pursued in a different forum. 11. The issue of Community law: the claimant’s arguments[50]The claimant argued on the other hand that the Brussels Convention was not concerned only with the regulation of conflicts between the jurisdiction of the courts of two or more contracting states. Title II established a system of common rules on the conferment of jurisdiction whether the alternative jurisdiction suggested was a court of another contracting state or the courts of a non-contracting state or a mixture of both. Three reasons of policy were suggested for this rule.[51]First, the central aim of this title was to promote legal certainty, and the idea that a court in a contracting state could decline jurisdiction in favour of the courts of a non-contracting state on forum non conveniens grounds would undermine the predictability that Article 2 sought to achieve. To confine the application of the Convention to contests for jurisdiction between contracting states would introduce a new level of uncertainty, for instance when one of the alternative fora was a contracting state and the other was not.[52]Secondly, contracting states undertake by Title III to recognise and enforce each other’s judgments without enquiring into the basis on which jurisdiction was assumed to give those judgments, and each contracting state was entitled to expect that the courts of each other contracting state would assume jurisdiction in the circumstances prescribed by Title II.[53]Thirdly, a court in a contracting state, when first seised of a case, may not stay proceedings on the basis of rules of private international law other that those prescribed by the Convention, since unless a stay on the grounds of forum non conveniens has the effect of disseising the staying court, all other contracting states must decline jurisdiction pending the judgment of the court first seised. (This was the problem which the Court of Appeal set out to resolve in Haji-Ioannou : see para 49 above).[54]The claimant contended that Article 2 is expressed in clear and mandatory terms, and that the text of the Convention identifies the only occasions when departure from this mandatory rule is permitted.[55]The claimant accepted that adherence to the literal text of Article 2 may yield inconvenient results when there is no choice between the courts of contracting states, and the courts of a non-contracting state may appear to provide a more convenient forum, whether because the lis is already proceeding there, or because the dispute is concerned with rights in rem over property in that forum, or because the parties have conferred exclusive jurisdiction on that other forum.[56]He suggested, however, that inconvenience may have to yield to the desirability of certainty in such cases, alternatively that despite the rigid approach revealed by the case-law of the Court of Justice, the text of the Convention may permit of implied exceptions in these cases. In this context it was said that the considerations raised by the doctrine of forum conveniens (which involves a substantial exercise of discretion and is largely unknown in civilian jurisdictions) are entirely different from those raised by the doctrine of forum prorogation , for which the Convention makes express provision so far as the courts of contracting states are concerned.[57]The claimant places reliance on the decision of the Court of Justice in the Group Josi case. The court there stated that the general rule set out in the first paragraph of Article 2 was subject only to the exceptions exhaustively listed in the Convention. There was no exception in the case of a choice between the courts of a contracting state and the courts of a non-contracting state, even when no other contracting state was involved.[58]English academic opinion is divided on this issue. Compare, for instance, Lawrence Collins, Forum Non Conveniens and the Brussels Convention [1990] LQR 535 with Cheshire and North, Private International Law, 13th Edition, pp 264-6 and Briggs and Rees, Civil Jurisdiction and Judgments , paras 2.227 and 2.231. 12. The reference to the European Court of Justice[59]In these circumstances we announced in court on 14th May 2002 our intention to refer this dispute about the interpretation of Article 2 of the Brussels Convention to the Court of Justice for a preliminary ruling pursuant to our powers contained in Article 2(2) of the 1971 Protocol to the Convention. We set out our Questions to the Court of Justice below. Without a resolution of these questions by way of preliminary ruling by the Court of Justice it will not be possible for this national court to give a final judgment on this appeal.[60]We respectfully request the Court of Justice to give consideration to the acceleration of its preliminary ruling in this case. The claimant was grievously injured in his accident, as appears from the medical report of Mr M.R.McClelland dated 17 th May 2002, which we are causing to be annexed to this reference, and we believe that it is in the interests of justice for the jurisdictional issues in this case to be resolved without unreasonable delay. Order:[1]The costs of the Appeal up to date of reference to the European Court of Justice be reserved. (Order does not form part of the approved judgment) QUESTIONS 1. Is it inconsistent with the Brussels Convention on Jurisdiction and the Enforcement of Judgments 1968, 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 State under the 1968 Convention is in issue;(b) if the proceedings have no connecting factors to any other Contracting State? 2. If the answer to question 1(a) or (b) is yes, is it inconsistent in all circumstances or only in some and if so which?

Cited in 8 later judgments