“…an entity which has employees willing to give untrue evidence, to cause unnecessary harm, to be obstructive of the arbitration process and to take untenable points with a view to delaying enforcement…a party willing to do all it can to prevent the other party from enforcing its legal rights.”
“…hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self-defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost.”
“It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction.”
“Lord Goff could not have foreseen, however, the subsequent distortion which would be brought about by the decision of the European Court in Owusu v Jackson. The direct effect of that case is that where proceedings in a civil or commercial matter are brought against a defendant who is domiciled in the United Kingdom, the court has no power to stay those proceedings on the ground of forum non conveniens. Its indirect effect is felt in a case in which there are multiple defendants, some of whom are not domiciled in a Member State and to whom the plea of forum non conveniens remains open: it is inevitable that the ability of those co-defendants to obtain a stay (or to resist service out of the jurisdiction) by pointing to the courts of a non-Member State which would otherwise represent the forum conveniens, will be reduced, for to grant jurisdictional relief to some but not to others will fragment what ought to be conducted as a single trial…There is no doubt, however, that the Owusu factor will have made things worse for a defendant who wishes to rely on the principle of forum non conveniens when a co-defendant cannot.”
“The decision is also important to those involved in corporate transnational tort litigation. Pursuant to recent EU legislation, UK courts have jurisdiction in civil actions alleging tortious activity committed abroad by a corporation domiciled in the UK…English courts have previously found that common law claims can, in principle, proceed against UK parent corporations for torts committed by their subsidiaries abroad (see Connelly v RTZ[1998] AC 854 and Lubbe v Cape[2000] 1WLR 1545 ). Following Chandler, a case could be made that a UK-domiciled parent company owes a duty of care to the employees of a foreign subsidiary.”
“Subject to the Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”
“41. Application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention. 42. The legal protection of persons established in the Community would also be undermined. First, a defendant, who is generally better placed to conduct his defence before the courts of his domicile, would not be able, in circumstances such as those of the main proceedings, reasonably to foresee before which other court he could be sued. Second, where a plea is raised on the basis that a foreign court is a more appropriate forum to try the action, it is for the claimant to establish that he will not be able to obtain justice before that foreign court or, if the court seised decides to allow the plea, that the foreign court has in fact no jurisdiction to try the action or that the claimant does not, in practice, have access to effective justice before that court, irrespective of the cost entailed by the bringing of a fresh action before a court of another state and the prolongation of the procedural time limits. … 44. The defendants in the main proceedings emphasise the negative consequences which would result in practice from the obligation the English courts would then be under to try this case, inter alia as regards the expense of the proceedings, the possibility of recovering their costs in England if the claimant's action is dismissed, the logistical difficulties resulting from the geographical distance, the need to assess the merits of the case according to Jamaican standards, the enforceability in Jamaica of a default judgment and the impossibility of enforcing cross-claims against the other defendants. 45. In that regard, genuine as those difficulties may be, suffice it to observe that such considerations, which are precisely those which may be taken into account when forum non conveniens is considered, are not such as to call into question the mandatory nature of the fundamental rule of jurisdiction contained in article 2 of the Brussels Convention, for the reasons set out above. 46. In the light of all the foregoing considerations, the answer to the first question must be that the Brussels Convention precludes a court of a contracting state from declining the jurisdiction conferred on it by article 2 of that Convention on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other contracting state is in issue or the proceedings have no connecting factors to any other contracting state.”
“Even if it were otherwise desirable, this court could not stay the proceedings against them (See Article 2 of the Judgments Regulation and Owusu v Jackson [2005] Q.B. 801 ).” (b) In Attorney General of Zambia v Meer Care & Desai (A Firm) [2006] 1 CLC 436 Sir Anthony Clarke MR said: “…a number of the defendants, including the first, second, fifth, eighth and twelfth defendants, are domiciled in a state which is a party to the Conventions the terms of which are now set out in Council Regulation EC 44/2001, which has the force of law in England. The effect of the decision of the European Court of Justice in Owusu v Jackson (Case C-281/02 ) [2005] 1 CLC 246 is that the English court could not grant a stay of proceedings against those defendants in favour of a court in a state which is not a party to a relevant convention, including Zambia. In any event, none of the defendants other than the appellants applied for a stay.” (c) In UBS AG v HSH Nordbank[2009] 2 Lloyds Rep 272 , Lawrence Collins LJ (as he then was) said: “103. The prevailing view is that there is no scope for the application of forum conveniens to remove a case from a court which has jurisdiction under the Regulation, even as regards a defendant who is not domiciled in a Member State…” (d) In A v A (Children: Habitual Residence)[2014] AC 1 , Baroness Hale summarised the position in these terms: “31. In Owusu v Jackson(Case C-281/02 )[2005] QB 801 , the Court of Justice of the European Communities held that the rule in article 2 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Measures 1968, which required that "persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state", meant that the courts of that state had to assume jurisdiction, even though there was a third country which also had jurisdiction and even though that country was, on the face of it, the more appropriate forum in which to bring the action. Thus the English court was not only empowered but obliged to assert and exercise jurisdiction rather than leave the parties to the jurisdiction of a state (Jamaica) which was not party to the Convention.”
“…Article 6(1) applies where claims brought against different defendants are connected when the proceedings are instituted, that is to say, where it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings, without there being any further need to establish separately that the claims were not brought with the sole object of ousting the jurisdiction of the courts of the Member State where one of the defendants is domiciled.”
“…the court seized is not obliged to examine systematically whether the extended jurisdiction deriving from [Article 6] resulted from an abuse of rights, although it may nevertheless do so if there is sufficient evidence that the applicant availing itself of the extended jurisdiction has so conducted itself as to distort the true purpose of that rule of jurisdiction.”
“A court will therefore need to be astute to detect and expose abusive claims brought against defendants domiciled in a Member State but which may have been brought only in order to rely on the Owusu v Jackson factor in relation to others.”
“3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where – (3) A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and – (a) there is between the claimant and the defendant 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.”
“The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”
“First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, i.e. a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success: e.g. Carvill America Inc v Camperdown UK Ltd[2005] EWCA Civ. 645 ,[2005] 2 Lloyd's Rep 457 , at [24].”
“The issues in the present cases fall into two segments. The first segment concerns the responsibility of the defendant as a parent company for ensuring the observance of proper standards of health and safety by its overseas subsidiaries. Resolution of this issue will be likely to involve an inquiry into what part the defendant played in controlling the operations of the group, what its directors and employees knew or ought to have known, what action was taken and not taken, whether the defendant owed a duty of care to employees of group companies overseas and whether, if so, that duty was broken. Much of the evidence material to this inquiry would, in the ordinary way, be documentary and much of it would be found in the offices of the parent company, including minutes of meetings, reports by directors and employees on visits overseas and correspondence.”
“80. In summary, this case demonstrates that in appropriate circumstances the law may impose on a parent company responsibility for the health and safety of its subsidiary's employees. Those circumstances include a situation where, as in the present case, (1) the businesses of the parent and subsidiary are in a relevant respect the same; (2) the parent has, or ought to have, superior knowledge on some relevant aspect of health and safety in the particular industry; (3) the subsidiary's system of work is unsafe as the parent company knew, or ought to have known; and (4) the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using that superior knowledge for the employees' protection. For the purposes of (4) it is not necessary to show that the parent is in the practice of intervening in the health and safety policies of the subsidiary. The court will look at the relationship between the companies more widely. The court may find that element (4) is established where the evidence shows that the parent has a practice of intervening in the trading operations of the subsidiary, for example production and funding issues.”
“Thus a claimant has to demonstrate that both threshold requirements are met. At the first stage under paragraph 3.1(3)(a), the court has to examine the nature of the claim which arises against the anchor defendants in isolation; that is to say on the assumption that there will be no additional joinder of the foreign defendants. The court has to be satisfied that not only is there “a real issue” between the claimant and the anchor defendants, but also that it is an issue “which it is reasonable for the court to try”.”
“Third, the question whether D2 is a proper party is answered by asking: “Supposing both parties had been within the jurisdiction would they both have been proper parties to the action?”: Massey v Heynes & Co(1888) 21 QBD 330 at 338, per Lord Esher MR. D2 will be a proper party if the claims against D1 and D2 involve one investigation: Massey v Heynes & Co at 338, per Lindley LJ; applied in Petroleo Brasiliero SA v Mellitus Shipping Inc (The Baltic Flame)[2001] EWCA Civ 418 ,[2001] 1 Lloyd's Rep 203 , at [33] and in Carvill America Inc v Camperdown UK Ltd[2005] EWCA Civ 645 ,[2005] 2 Lloyd's Rep 457 , at [48], where Clarke LJ also used, or approved, in this connection the expressions “closely bound up” and “a common thread”: at [46], [49].”
“The “necessary or proper party” test is at least as broad as the court's power to add or substitute a party underCPR 19.2 (2) (see United Film Distribution Ltd v Chhabria[2001] EWCA Civ 416 at paragraphs 36 to 38 and Altimo Holdings v Krygyz Mobil Tel Ltd[2011] UKPC 7 at paragraph 87.) For present purposes, it is therefore sufficient for Sana to show that there is a serious issue involving [the foreign defendant] which is connected to the matters in dispute in the proceedings, and it is desirable to add [the foreign defendant] so that the court can resolve that issue.”
“the court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”
“…the task of the court is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice…”
“But faced with a stark choice between one jurisdiction, albeit not the most appropriate in which there could in fact be a trial, and another jurisdiction, the most appropriate in which there never could, in my judgment, the interests of justice would tend to weigh, and weigh strongly, in favour of that forum in which the plaintiff could assert his rights.”
“Although the burden is on a claimant to show, when seeking leave to serve out of the jurisdiction, that England is the appropriate forum where the case can most suitably be tried for the interests of all the parties and the ends of justice, the fact of continuing proceedings in England against other defendants on the same or closely allied issues virtually concludes the question, since all courts recognise the undesirability of duplication of proceedings and the lis alibi pendens cases make this clear.” (b) In BNP Parabas v Ahab Co X19 and Others[2011] EWHC 1081 (Comm) Burton J found on the facts that there was “nothing to be said in favour of England at all, except the existence of this one claim in which it is said that the third party is a necessary or proper party, but which could plainly be litigated on its own without the involvement of the third party, and whose outcome could then be followed up by an indemnity claim if appropriate.”
“However, the context is that the claim against the second defendant is not a freestanding claim, and it has to be considered in circumstances where the claimant has chosen to bring, and is entitled to bring, claims against the first and third defendants in England, which it says it anyway wishes to pursue, regardless of whether the second defendant is brought into these proceedings or not. What therefore has to be considered, as Mr Alexander on behalf of the claimant submits, is not whether England or Russia is the more suitable forum for the claim against the second defendant, other things being equal, but whether it is appropriate to have proceedings against the second defendant in Russia in circumstances where proceedings involving identical or virtually identical facts, all the same transactions, witnesses and documents, will anyway be taking place in England. The real question, in other words, is whether the factors which connect the claim against the second defendant with Russia carry weight in circumstances where to require the claim to be pursued in Russia would result in duplication of cost and the risk of inconsistent judgments - the same factors which make the second defendant a necessary or proper party.”
“95. The better view is that, depending on the circumstances as a whole, the burden can be satisfied by showing that there is a real risk that justice will not be obtained in the foreign court by reason of incompetence or lack of independence or corruption. Of course, if it can be shown that justice ‘will not’ be obtained that will weigh more heavily in the exercise of the discretion in the light of all other circumstances.”
“Allegations as to why the appropriate forum should be displaced must amount to an allegation that the forum is or will be unavailable for the trial of the claim. This must be clearly demonstrated against an objective standard and supported by positive and cogent evidence”
“I have never tried to get a lawyer to represent us against KCM. I do not have any money and I know that lawyers cost money so I would not be able to fund a claim. Even if I did have the money I have no idea how to get a lawyer, how the procedure starts or I look for one. It is not an option for people like us. I have never had a lawyer before for anything in my life and I have never heard of anyone in the community having a lawyer nor have my family. We are poor people here and in Zambia having a lawyer is for the rich only.” (b) Brigadier Siachitema, a Zambian lawyer currently based in South Africa said: “50. Even when people came to me who had previously been represented by private law firms on a pro bono basis, it is notable that all of them had still been asked to pay a deposit for their own disbursements such as court filing, printing and registry searches. 51. Clients came to me due to the fact that they could not pay this deposit. None of the clients I represented since 2008 had the ability to pay the deposit required by lawyers to open their cases. In fact, the majority would not even be able to pay just a consultation fee. I have advised hundreds of clients with good arguable cases that were unfortunately time barred because they had not previously been able to find funding for legal representation. 52. Given that in my experience private practice lawyers charge for all dispersements including court filing fees, it is extremely unlikely that a law firm would be willing to pay for disbursements such as water sampling and environmental and medical reports. 53. In my experience, groups of impecunious people struggle to raise enough funds for private practices lawyers through contributions. Also such contribution can deepen in equality among the group because they have different income levels or make different sacrifices. I met with two groups of such people in November last year to try and understand the problems they face. In one case of forced displacement, the 35 plaintiffs sold their goats while one widow sold her cow but still could not raise enough money. In the other claim a group of defendants raised the initial deposit through contributions but failed to pay a further deposit to their lawyer and it was not enough to keep the case going.”