Successful jurisdiction challenges – The principle of forum non-conveniens

In one of our recent cases the claimant (C) claimed damages from the defendant (D), a French insurer. His claim arose from a road traffic accident on 16 July 2019 which occurred in France. There is no dispute that the claim fell to be assessed by reference to French law (even though the claim was brought in England) and would require expert evidence as to the French law of damages.

Weightmans was instructed to act on behalf of D and applied to challenge the court’s jurisdiction and to set aside the order to grant permission to serve proceedings out of the jurisdiction (as is the requirement since Brexit), on the basis that France was the appropriate forum for trial of the claim.

In cases of this type, C bears the burden of persuading the court that England is clearly the appropriate forum for the trial of the claim.

Background to application

The claim was issued on 5 September 2024. On 24 October 2024, C made an application for permission to serve the proceedings out of the jurisdiction on D in France, the court granted permission.

On 27 February 2025, the proceedings were served on D in France by a huissier de justice. D swiftly filed its acknowledgment of the claim and an application challenging the Court’s jurisdiction.

The legal framework

English law requires C satisfy a three-stage test to show that permission to serve out of the jurisdiction should be granted. Each aspect of that test must be satisfied separately.

For the purposes of this application, it is accepted that C had satisfied the first and second stages of the test: (1) that the claim has a real prospect of success and (2) that it falls within one of the jurisdictional gateways in CPR PD 6B. Specifically, C satisfied gateway 3.1(9)(a) as interpreted in FS Cairo (Nile Plaza) v Brownlie (“Brownlie II”), given the threshold requirement was that C had suffered ongoing physical injuries in the jurisdiction.

However, C also had to satisfy the court that England was the most appropriate place to bring the claim, ie Forum Conveniens.

Judgment

The court heard submissions from both parties, and upheld our application on all grounds and declared that England was not the appropriate jurisdiction.

The relevant factors considered by the judge were:

• The claim was a low value claim

• Liability was admitted

• The accident occurred in France and damage continued to be suffered in the UK

• Material witnesses as to facts were English speaking people resident in Sussex

• The role of a medical legal expert in French proceedings

• Whether C would have substantial justice in France

When it comes to question of what the Forum Conveniens is, two factors seem to be uncontroversial, the accident happened in France and French law applies. These militate in favour of France.

The judge also considered the role of the French medico-legal expert at length. The Claimant had provided a French law expert without having sought input from a French medico-legal expert. The judge noted that:

“…the French medico-legal expert in French personal injury proceedings is unfamiliar to English lawyers. They conduct examinations that take considerably longer than the 20 minutes might take in this jurisdiction. They perform an important role. These are matters of medico legal expertise. It has become in this case important to discern whether that is a matter of law or procedure. From what I have been told it seems to me they are more on the side of the legal experts and therefore a question of fact. Seems to me that important to note the French law expert would not be able to replace French medical expert.

In those circumstances, it seems to me that the role of the medical expert is not easily replaced and that it is not possible to conclude that England is the forum with clearest connection to this case”.

On the question of C not obtaining substantial justice in France, the judge was satisfied that it would be remarkable if a jurisdiction which not so very long ago was trusted to deal with claims by French people against English defendants had somehow became a place in which justice would not be achieved, and this included the financing aspect of the litigation. France does not offer “no win, no fee” legal funding but there are alternatives, which French citizens have been relying on.

The court therefore declared they had no jurisdiction and set aside the service of the claim form. C did not appeal.

This decision demonstrates that it is not all one-way traffic in favour of a Claimant in jurisdictional disputes and that careful preparation can lead to successful challenges including effective dismissal of claims brought as a result of accidents occurring outside the jurisdiction.