England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/07/16

Mr Justice Hickinbottom:

Introduction

1. In the summer of 2012, Bertrand Mouly and his family went on vacation to Scotland, from their home in Paris. Before leaving France, through an agency in Paris, M Mouly hired a Ford Focus car for the holiday. The car was insured by the Defendant.
2. On 3 August 2012, whilst driving the car near Oban, M Mouly crossed onto the wrong side of the road and collided with another car. As a result of the accident – which was M Mouly's fault – Mme Mouly and their two children ("the Claimants") suffered injuries. The Defendant promptly accepted liability for their claims; but, despite correspondence between the Claimants' solicitor and the Defendant's claim handler and solicitor, the claims were not settled. On 29 July 2015, the Claimants issued these proceedings against the Defendant.
3. In this application, the Defendant seeks a stay of the action under CPR Part 11 (or, alternatively, under CPR Part 3), on the basis that Scotland is the forum conveniens. The application under Part 11 is out-of-time; and so the Claimant also seeks an appropriate extension of time.

The Facts

4. The Defendant is part of the AIG Group, an international group of companies serving customers in more than a hundred countries. The Defendant is registered in London, under the laws of England and Wales, and has branches in Glasgow and Belfast. Its claims handling office in Manchester deals with claims from all parts of the United Kingdom.
5. M Mouly and his family are all domiciled and habitually resident in France. For the holiday, M Mouly rented a car through Avis in Paris, on the basis that he would collect the car from, and deliver it back to, Edinburgh; but the car rental agreement was with Avis Rent-a-Car Limited, a company based in Bracknell and registered in England and Wales. The law of the contract (which I have not seen) is not agreed: the Claimants' pleaded case is that it is English law, and the Defendant appears to assert that it is Scots law. At present, there appears to be no positive evidence either way. This is of no practical moment, as there are no issues between the parties in respect of that agreement. As I have indicated, the car was insured by the Defendant.
6. The accident occurred, as I have briefly described, on 3 August 2012. As well as widespread bruising and soft tissue damage, Mme Mouly suffered a broken wrist, which required surgery. Eve Mouly suffered facial injuries, particularly to her chin, which required suturing and a splint; and her teeth. Arthur Mouly suffered a laceration to his forehead (which required closing under a full anaesthetic), a small vertebral fracture and abdominal trauma. They were all treated for their injuries, first, in Scotland, where they were each in-patients for between three and six days; and then in France. Whilst in Scotland, the Claimants incurred losses associated with their injuries and treatment, including accommodation, food, clothing, telephone and transport costs. The Claimants' other loss and expense was incurred in France. They had the benefit of French travel insurance which incurred outlays for repatriation etc, and in respect of which they make subrogated claims under French law. Aggregate damages are pleaded in this claim as exceeding £25,000.
7. In respect of these various losses, the Claimants claimed on M Mouly's insurance policy with the Defendant. M Mouly's liability for the losses incurred was never disputed; nor was the Defendant's liability to indemnify him under the insurance contract between them. On 29 November 2012, the Defendant openly conceded that M Mouly was at fault, and indicated that the Claimants' claims would be dealt with.
8. The Claimants instructed solicitors in London, Pierre Thomas & Partners ("Pierre Thomas"), who wrote a letter of claim on 7 October 2013. The Defendant's claims handling office in Manchester responded on 11 November 2013, admitting full liability. During 2014, Pierre Thomas corresponded with the Defendant's claims handling office, and their claims handling agents in France. They wrote to the Defendant indicating that the Claimants intended to travel to the United Kingdom in order to be medically examined for the purposes of a medico-legal report. On 23 July 2014, the Defendant wrote to Pierre Thomas indicating that it considered such a trip unnecessary, and would serve only to drive up costs. It made clear that, in the circumstances, it was not prepared to pay for the flights and accommodation.
9. On 26 June 2015, the Defendant wrote to Pierre Thomas, nominating an address in Manchester for service of proceedings, namely where their UK Staff Counsel were based. Proceedings were issued on 29 July 2015, and served on 12 November 2015.
10. The Defendant instructed solicitors in Manchester, Plexus Law. Ms Lorien Helm of that firm contacted Ms Maud Lepez of Pierre Thomas (who was handling the claim for the Claimants) to query why proceedings had been issued in England, when the accident and damage had occurred in Scotland and the claim had no connection with England. She appears to have replied that the claim had been issued in England because the Defendant had a registered office in England, and had given an address for service in England. Ms Helm does not appear to have then suggested that England as the appropriate jurisdiction for the claim would, or might be, challenged.
11. On 30 November 2015, an acknowledgment of service was filed by a member of Ms Helm's team, Mr Simon Kingston. On that form, the box by "I intend to defend all of the claim" was ticked; the box by "I intend to contest jurisdiction" was not. The rubric of the form stated:

"If you do not file an application to dispute the jurisdiction of the court within 14 days of the date of filing this acknowledgment of service, it will be assumed that you accept the court's jurisdiction and judgment may be entered against you."

12. Given the later application concerning jurisdiction, in paragraph 15 of her statement of 8 January 2016, Ms Helm explains as follows:

"Incorrectly this acknowledgment indicated an intention to defend the claim and did not suggest that jurisdiction would be challenged. This was because the jurisdiction issue was not considered by Mr Kingston at the time of the form. I apologise to the Court on behalf of my firm for this oversight. I wish to emphasise, however, that it was not the case that the Defendant had determined to accept jurisdiction. It was because Mr Kingston did not realise that there was a jurisdiction issue."

13. That was because, at that stage, there was no jurisdiction issue apparent. Ms Helm continues (paragraph 16):

"On 11 December 2015 a representative of the Defendant wrote to Mr Kingston asking him to consider jurisdiction as the accident was in Scotland and therefore proceedings should be before the Scottish courts. The email contains privileged information (which is not waived). The Defendant's instructions were to seek to challenge jurisdiction if possible."

14. The 14 day period referred to on the form of acknowledgment of service, reflects the requirement of CPR Rule 11.1(4)(a), to which I shall return. As the acknowledgment was filed on 30 November, any application contesting the court's jurisdiction had to be made by 14 December 2015.
15. On 14 December 2015, however, Mr Kingston spoke to Ms Lepez and agreed an extension of 14 days for the Defence. A challenge to the jurisdiction of the English court was not mentioned as even a possibility. In view of the Christmas holiday period, the time for Defence was later extended to 8 January 2016. Ms Helm says (paragraph 18 of her statement) that she instructed Counsel on 30 December 2015, she responded on 6 January 2016, and the application with which I am now concerned was issued on 8 January 2016. The application was initially listed before Master McCloud on 8 June 2016, when she adjourned it into the judge's list with a time estimate of one day. Thus, the application came before me.

The Law

16. Much of the law is common ground.
17. As I have already indicated, there are no issues in relation to the car rental agreement.
18. No issue arises out of the policy of insurance either. It is common ground that the Claimants have a direct right of action against the Defendant by virtue of regulation 2 of the European Communities (Rights against Insurers) Regulations 2002 (2002 SI No 3061), which transposes article 3 of Directive No 2000/26/EC of the European Parliament and Council ("the Fourth Motor Insurance Directive"). Under regulation 2, where "an entitled party" has a cause of action against an insured person in tort or delict, and that cause of action arises out of an accident, then:

"… the entitled party may, without prejudice to his right to issue proceedings against the insured person, issue proceedings against the insurer which issued the policy of insurance relating to the insured vehicle, and that insurer shall be directly liable to the entitled party to the extent that he is liable to the insured person."

Each Claimant is an "entitled party", and each has a cause of action against M Mouly for damage suffered as a result of the car accident. As a result of the insurance contract and these provisions, the Defendant is directly liable for that damage.

19. Nor is there any issue as to the law of the claim: it is French law. Even where an insurer is liable under the Fourth Motor Insurance Directive, issues such as responsibility for an accident and quantum of damages for injuries suffered in an accident are issues that arise in tort, not contract (see Maher v Groupama Grand Est [20009] EWCA Civ 1191 at [22] per Moore-Bick LJ). The relevant rules for the choice of law are found in Regulation No 864/2007 of the European Parliament and Council on the law applicable to non-contractual obligations (generally known as "Rome II"). Article 4 of Rome II provides that, although generally the law in tort claims is determined by the place of the relevant accident (i.e. where the direct damage occurs), where the wrongdoer and the victim both have their habitual residence in the same Member State, then the place of that mutual habitual residence dictates the choice of law. As M Mouly and the Claimants all share habitual residence in France, French law governs the claim.
20. The law with regard to jurisdiction as between Member States is also uncontroversial. It is governed by Regulation No 1215/2012 of the European Parliament and Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (generally known as "Brussels Recast"), as interpreted through FBTO Schadeverzekeringen v Odenbreit [2007] (Application No C-463/06). It is common ground that, under these provisions, the Claimants have a choice of jurisdiction: they are entitled to pursue the Defendant in France or in the United Kingdom. They have chosen the United Kingdom.
21. The allocation as between the separate legal jurisdictions within the United Kingdom is dealt with Part II of, and schedule 4 to, the Civil Jurisdiction and Judgments Act 1982. By paragraph 1, subject to the rules within the schedule, "persons domiciled in a part of the United Kingdom shall be sued in the courts of that part"; and, by paragraph 2, they may only be sued in another part by virtue of paragraphs 3-13 of the schedule. However, section 49 of the Act provides:

"Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise…".

That expressly preserves the power of the court to stay or strike out proceedings on the grounds of forum non conveniens in domestic cases, i.e. this court has the power to stay or strike out this claim on the basis that the Scottish courts are the more convenient forum (Cook v Virgin Media Limited [2015] EWCA Civ 1287).

22. The proper approach to the exercise of that power is, again, well-established. The law was helpfully summarised by Lord Goff of Chieveley in Spiliada Maritime Corporation v Canulex Limited [1987] 1 AC 460 ("Spiliada") at pages 476B-478E, from which the following propositions relevant to the application before me are largely derived:

i) The burden of proof generally lies upon the defendant, who seeks a stay on forum non conveniens grounds. A stay will only be granted where the court is satisfied that another competent forum is appropriate for the trial of the action, in the sense that there is a more suitable court to try the case in the interest of the parties and the ends of justice.

ii) Where a claimant chooses the courts of England and Wales ("the English courts"), and it is established that those courts have jurisdiction as of right, the court will not lightly interfere: it will only disturb the jurisdiction if "the balance of factors is strongly in favour of the defendant". The other forum must be "clearly more appropriate" (page 477G). In Lord Goff's words (at page 477E-F):

"In my opinion, the burden resting on the defendants in not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that the jurisdiction has been founded in England as of right…"."

iii) Where the court concludes that there is no other forum which is clearly more appropriate for the trial of the action, it will generally refuse a stay; but, if it concludes that there is such a forum, it will generally grant a stay unless there are circumstances which would render a stay unjust (page 478B-E).

iv) Because the focus is on the more convenient forum for the trial of the action, it is important to identify as clearly as possible the issues that are likely to arise at the trial of the action on its merits, because only then can the competing jurisdictions properly be compared for these purposes (see, e.g., VTB Capital plc v Nutriek International Corporation [2013] UKSC 5 ("VTB") at [36] per Lord Mance JSC and at [192]-[193] per Lord Clarke of Stone-cum-Ebony JSC).

Procedure

23. The procedure for disputing the court's jurisdiction is now set out in CPR Part 11. That provides (so far as relevant to this application):

"(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 not such jurisdiction or should not exercise any jurisdiction which it may have."

(2) A defendant who wishes to make such an application must first file an acknowledgment of service….

(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court's jurisdiction.

(4) An application under this rule must –

(a) be made within 14 days after filing an acknowledgment of service; and

(b) be supported by evidence.

(5) If the defendant –

(a) files an acknowledgment of service; and

(b) does not make such an application within the period specified in paragraph (4),

he is to be treated as having accepted that the court has jurisdiction to try the claim."

24. In Texan Management Limited v Pacific Electric Wire & Cable Company Limited [2009] UKPC 46 ("Texan Management"), Lord Collins explained how CPR Part 11 provides a procedure for two distinct circumstances, which had previously been procedurally distinct, namely (i) where a challenge is made to jurisdiction stricto sensu, i.e. it is contended that the English courts do not have jurisdiction (previously regulated by RSC Ord 12 rule 8), and (ii) where it is accepted that the English courts have jurisdiction, but it is contended that they should not exercise that jurisdiction because another competent jurisdiction is more convenient (previously made under the inherent jurisdiction of the court). CPR rule 11(1) makes clear that the Part 11 procedure applies to both sets of circumstances.
25. However, Lord Collins emphasised that, simply because CPR Part 11 covers two sets of circumstances, does not mean that all of its provisions apply to both. He said (at [68]):

"Thus the provision in… [CPR rule 11(5)]… that a defendant who files an acknowledgment of service and does not make an application under the rule 'is to be treated as having accepted that the court has jurisdiction to try the claim' is superfluous in the case of a defendant within the jurisdiction, because there could never be any doubt that the court has jurisdiction over such a defendant."

26. Lord Collins also considered the time limit for applications under CPR Part 11. He said that the tight time limit imposed makes complete sense in cases where it is asserted that the English court does not have any jurisdiction, which is an issue which has to be determined at the outset of the claim. However, circumstances which make the English court non conveniens might not exist at the start of the case: they might arise during the course of proceedings. Lord Collins firmly concluded that an application for a stay cannot be shut out by the time limit in CPR Part 11, even as extendable and extended under the rules. He said (at [76]):

"Where the circumstances which give rise to an application for a stay after the service of proceedings and outside the time limits in… CPR Part 11, then the application may be made under the inherent jurisdiction or under the court's powers of management in… CPR rule 3.1(2)(f)…".

CPR rule 3.1(2)(f) allows the court to stay proceedings as part of its general case management powers.

27. He therefore summarised the position as follows (at [77]):

"… [T]he overall position is this: (1) if at the time the proceedings are first served, there are circumstances which would justify a stay, the application should be made promptly under… CPR Part 11; (2) any failure to comply strictly with time-limits may be dealt with by an extension of the time-limits, and any formal defect in the application may be cured by the court; (3) if circumstances arise subsequently which would justify an application for a stay, the application would be made under the inherent jurisdiction or… CPR rule 3.1(2)(f)."

Procedural Issues

28. Before I consider the substance of the forum non conveniens challenge, I should deal with a number of procedural issues which are logically prior.
29. First, Ms Deal for the Claimants submitted that the Defendant had voluntarily submitted to the jurisdiction by failing to apply within the time required by CPR Part 11; or, if not, then by taking other steps in the litigation which were inconsistent with the making and maintaining of a challenge to the jurisdiction.
30. In relation to lateness, Ms Deal argued that the Defendant had submitted to the jurisdiction simply by failing to make an application contesting jurisdiction within the time limit provided for by CPR rule 11(4). The effect of rule 11(5) was that, in those circumstances, "the defendant is to be treated as having accepted that the court has jurisdiction to try the claim".
31. However, that misunderstands the nature of rule 11(5), which is, in my respectful view, clear from the words used, but put beyond doubt by Lord Collins in Texan Management at [68] (quoted at paragraph 25 above). Rule 11(5) can have no application to cases in which it is accepted that the English courts have jurisdiction but, it is contended, they should not exercise that discretion because another jurisdiction is more appropriate; because rule 11(5) can only have any substance in circumstances in which the jurisdiction of the English courts is or may be in issue, so that the defendant can, by tardiness, lose the opportunity of contending that it has no jurisdiction. There is no question of a defendant submitting or being treated as having submitted to the jurisdiction when the jurisdiction of the English courts is not in issue, but only whether the courts should be self-restrained in exercising that jurisdiction.
32. Nor am I persuaded that, in this case, the Defendant voluntarily submitted to the jurisdiction in some other way. Ms Deal relied upon an agglomeration of elements to contend that it did. However, I do not consider that it voluntarily submitted to the jurisdiction as a result of steps it took prior to the issue of proceedings; and the simple fact that extensions of time for a Defence were sought and granted appears insufficient to amount to submission to the jurisdiction (see Texan Management at [85]). In my judgment, none of this amounted to an "unequivocal recognition that it was appropriate for the [English] court to exercise its jurisdiction" (at [86]).
33. However, nor am I persuaded by the submission of Ms Crowther for the Defendant that the CPR do not envisage any sanction when a defendant fails to comply with the time limit in rule 11(4) in circumstances in which he wishes to argue that the court should not exercise its jurisdiction, and he knows all relevant circumstances at the time he acknowledges service. Ms Crowther submitted – as I have found – that rule 11(5) only applies to circumstances in which the defendant wishes to dispute that the court has jurisdiction; and, she submitted, the rule makers clearly and intentionally omitted imposing any sanction where a defendant is late in making an application seeking to restrain the court from exercising jurisdiction that it has. Ms Crowther relied upon Lord Collins in Texan Management at [80], in which he said that, in these circumstances; "No question of a sanction arises".
34. I can dispose of the argument shortly. CPR Rule 11(4) is mandatory: an application for a declaration that the court should not exercise its jurisdiction over a particular case on forum non conveniens grounds "must" be made within 14 days of the acknowledgment of service. If it seeks to make such an application beyond that time, then rule 11(5) does not apply, for the reasons I have already given. However, if he wishes to apply out of time, the defendant must seek an extension. It is now well-settled that an application for an extension of time for compliance with the rules falls to be decided in accordance with the same principles as an application for relief from sanctions, and that is so even where the rule does not itself prescribe a sanction for its default (see Salford Estates (No 2) v Altomart Limited [2014] EWCA Civ 1408 ("Salford Estates") and Zumax Nigeria Limited v First City Monument Bank plc [2016] EWCA Civ 567 at [27] per Kitchin LJ, applying Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 and Denton v TH White Limited [2014] EWCA Civ 906). Therefore, in dealing with an application for an extension of time, even where there is no express sanction for default, there is a potential implicit sanction which is brought into play by the court refusing to extend time, with the effect that the party in default is prevented from taking some procedural step that it would or may have been open to him to make had he been in time.
35. Therefore, in considering an extension of time for the application for a stay on non conveniens grounds, the three stage Mitchell/Denton exercise has to be conducted, namely:

i) identifying and assessing the seriousness and significance of the default;

ii) identifying the cause of the default; and

iii) evaluating all the circumstances of the case, including those specifically mentioned in relation to relief from sanction in CPR rule 3.9 (i.e. the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules of court etc) , so as to enable the court to deal with the application justly.

36. In this case, the application was obviously made well out of time: the rules required an application to be made within 14 days of acknowledgment of service (i.e. by 14 December 2014) and the application was not in fact made until 8 January 2015, i.e. 22 days late. On any view, that is a substantial delay. However, proportionally lengthy delays may nevertheless not be serious and significant in this context: it depends on the facts of the specific case (see, e.g., Salford Estates at [21]).
37. In this case, the Claimants have not pointed to any real prejudice they have suffered as a result of the delay; or, to put that another way, there is no reason to think that, if the extension is granted, the Claimants will suffer any real prejudice. They have been able to respond to the application just as effectively as they could have done if it had been made in time. As the period of delay was over a holiday period, it is very unlikely that the hearing would have been markedly earlier that the date on which it was in fact listed. The fact that the application was late appears to have neither delayed the proceedings, nor resulted in any additional cost. In short, although the delay was unfortunate and relatively long, it has not had any material effect on the course of the proceedings. Looked at in the round, I do not consider that the delay can be regarded as serious and significant, as those expressions are used in this context. That being so, it is indicative of allowing the extension.
38. As I have indicated, the reasons for the delay were unimpressive. Although Ms Helm refers to an "oversight" (see paragraph 12 above), it seems clear that, after filing the acknowledgment of service, the Defendant's team had something of a change of direction. Even if the client was considering the jurisdiction question, their representatives were not when the acknowledgment of service was filed on 30 November or indeed until the client raised the matter with them on 11 December 2015. By 14 December 2105 (the last day upon which an application could have been made), no decision had been taken as to whether to pursue a jurisdiction application. It was not until Counsel's advice had been obtained on 6 January 2016, and instructions taken two days later, that the application was made.
39. However, unsatisfactory as that explanation is and noting in mind the importance of the need to enforce compliance with rules, given the absence of prejudice to either the Claimants or the court process, I do not consider that this is a case in which it would be appropriate to refuse relief in the form of an extension of time as a punitive measure; and, in my view, indulgence should be granted.
40. I therefore extend time for the application, so that it is in time.
41. Finally in relation to procedural matters, Ms Crowther submitted that, if an application for a stay could not be allowed in under CPR Part 11, the court should consider a stay under its general case management powers (CPR rule 3(2)(f)) or under its inherent powers.
42. I have allowed an extension, and thus allowed in the application under CPR Part 11; and so it is not necessary for Ms Crowther to rely upon the alternative of the inherent powers of the court and/or CPR Part 3. But, in any event, Ms Crowther all but abandoned this alternative during the course of the hearing. In my view, she was right not to press it. Of course, the court has both an inherent jurisdiction to stay, and an express general power to stay under CPR rule 3(2)(f). However, as Lord Collins said in Texan Management at [57], where the subject matter of an application is expressly dealt with in the CPR, an application should be dealt with in accordance with those provisions and not by the use of the court's inherent jurisdiction or general case management powers simply to avoid the express procedure. In my view, where, as here, the relevant circumstances do not change in the period to 14 days after the acknowledgment of service (which might trigger the more general powers), an applicant should make his application to restrain exercise of jurisdiction by the English courts under Part 11, seeking an extension of time if required; and should not make an application under the general or inherent powers. That is, of course, in line with the observations of Lord Collins in Texan Management at [77], quoted at paragraph 27 above. I do not consider there is anything in Cook v Virgin Media Limited [2015] EWCA Civ 1287, to which I was referred, to the contrary. That case turned on very different facts.

The Substantive Application

43. That leaves the merits of the Defendant's substantive application under CPR rule 11(1)(b).
44. Ms Crowther accepted that:

i) There is no overwhelming factor that unarguably marks England & Wales on the one hand, or Scotland on the other, as the "obvious forum" for the trial of this claim.

ii) Although France might be regarded as the "obvious forum" for the trial of this claim, it is not an available forum. The Claimants are entitled to have their claims determined in the United Kingdom, and the choice of jurisdiction in terms of conveniens is restricted to England & Wales on the one hand, and Scotland on the other.

iii) The fact that the Defendant is registered in England is a factor which weighs in favour of the English courts; although, she submits, a factor of little weight.

45. She submitted that, of the two jurisdictions, Scotland is the natural forum for this dispute, it uniquely having some real and substantial connection with the dispute. The accident occurred in Scotland, and some loss and damage (including the losses in the subrogated claims) occurred in Scotland. None occurred in England. Furthermore, the relevant documents (such as those held by the police, local authority and hospital and other medical authorities) are in Scotland, and it can be assumed that it will be easier to obtain those documents in the context of Scottish proceedings.
46. However, as Ms Deal submitted and VTB emphasised (see paragraph 22(iv) above), in comparing jurisdictions for these purposes, it is essential to identify the issues that are likely to arise at the trial of the action on its merits. In this case, liability is not (and never has been) in issue. The issues in the claim are restricted to quantification of damage, possibly including causation. No issues have yet been identified – there may, ultimately, be none – but, as Ms Deal submitted and Ms Crowther did not seek to controvert, the issues with which the court might have to deal at trial are as follows:

i) What injuries did the Claimants sustain as a result of the accident?

ii) What were their consequential losses?

iii) Under French law, what is the proper assessment of damages for those injuries and losses?

47. In the light of those issues, Ms Deal submitted that there were strong connecting factors with England. In addition to the fact that the Defendant is domiciled in England, the parties have engaged in correspondence etc on the basis that the claim would be contested in England and have used English claims handlers and solicitors so to do. English medico-legal experts have been instructed and have prepared reports. Other than domicile (which I consider to be a factor of some force), I do not consider that these factors are particularly weighty.
48. However, as the authorities (such as Spiliada: see paragraph 22 above) make clear, where the English jurisdiction is founded on right, it is for the defendant to show that "the balance of factors is strongly in favour of the defendant" or another forum is "clearly more appropriate". Here, given the issues that may feature at the trial and on the evidence I have before me, I am not persuaded that Scotland is clearly more appropriate.
49. The fact that the accident and damage occurred in Scotland appears to me to be of little weight, given the potential issues that are left between the parties. In relation to the documents, I accept that some of the documents relating to the accident and aftermath will be in Scotland – and none in England. However, the relevant documents will be restricted to those concerning quantum – documents relating only to liability will not be required – and there is no compelling evidence before me that having the trial in Scotland will be a substantial advantage in obtaining relevant documents. Ms Crowther asked me to assume that the Scottish courts would obtain such documents more efficiently, including cost efficiently; but there is no evidence before me from (e.g.) a Scottish solicitor to that effect. On the evidence before me, I see no reason why obtaining medical records from Scotland should pose any difficulties for parties in English litigation, especially where the patients consent. If a defendant wishes to persuade a court that another jurisdiction is clearly more appropriate than that of England & Wales, he should provide a firm evidential basis for that contention. There is none here.
50. It is noteworthy that the Defendant's solicitors did not appear to consider there was a jurisdiction issue until after acknowledging service, and then only when their client suggested such a point might be taken. Even then the point was not even intimated to the Claimants until Counsel's opinion was obtained. That does not suggest that Scotland was, or is, the clearly more appropriate forum, such that the English proceedings should be stayed.
51. This seems to me to be a case in which, as between those available, there is no obviously preferably jurisdiction. In any event, the Defendant has failed to persuade me that Scotland is clearly preferable.
52. In those circumstances, this application is refused.