OVER THE BORDER

  By John Collins

1. In the recent cases of Cook v Virgin Media Ltd and McNeil v Tesco Plc [2016] 1WLR 1672, the Court of Appeal had to consider two cases raising a virtually identical issue. Each case related to a Scottish claimant claiming for personal injuries sustained in Scotland against Defendants who had registered offices in England and Wales. Mr Cook claimed that he suffered personal injury in a tripping accident in East Kilbride as a result of the negligence of Virgin Media. Virgin Media admitted liability. The claim was brought through the Northampton Money Claims Centre. In their defence Virgin Media said that the claim would be more appropriately dealt with in Scotland. In the second case Mr McNeil had suffered injuries in a Tesco store in Glasgow. He too claimed putting a claim through the Northampton Money Claims Centre. Tesco denied liability and said that the claim should have been brought in Scotland. Both these cases were shunted to Carlisle County Court. (It is perhaps a pity that the old Berwick-upon-Tweed County Court has long closed its doors, since it might have been an ideal venue.)
2. District Judge Park at Carlisle complained “We seem to be the County Court for Scotland” and of his own initiative he proceeded to stay both claims on the basis that Scotland was the most convenient forum for the claims. He then struck out both claims. His decision was approved by Judge Peter Hughes QC and in due course by the Court of Appeal. The Court of Appeal held that the fact that neither Defendant had challenged the jurisdiction of the court under the procedure laid down in CPR part 11 did not prevent the court from exercising its case management powers under rule 3.3 to strike out the claims on the basis that Scotland was the more appropriate forum.
3. I do not propose to deal with the very interesting arguments about the EC Council Regulations and in particular Regulation 34/2001, which, if Nicola Sturgeon has her way, eventually may become relevant. The matter which troubles me is the fact that a situation can arise as here where a great deal of convenience may be sacrificed to the principle of having the case dealt with in the convenient forum. One feature of the case struck me as particularly significant. In Cook v Virgin Media, both the solicitors for the Claimants and those for the Defendant were Manchester solicitors. The second case was slightly less extreme, since the solicitors acting for Mr McNeil were the same Manchester solicitor as acting for Mr Cook but the solicitors for the Defendant were Liverpool solicitors. Quite what possessed the defendants’ solicitors to raise the issue of convenience of the forum, particularly in the first case, I cannot comprehend. It was obviously much more convenient when the solicitors are in the same city for them to communicate readily and deal with all the preparations and indeed the conduct of the case in that city. Indeed, Lord Dyson MR at paragraph 40 pointed out that the issue was never raised that the court was wrong to exercise its power to strike out the claim where, as in the case of Cook, the Defendant has admitted liability. Although the court had the power to strike out a claim under those circumstances, it was patently undesirable to do so. The better course, said Lord Dyson, would be to stay the proceedings under the power of the court under rule 3.1 (2) (f).
4. I would go further and say that whilst it is clearly relevant, particularly if liability is in dispute, that a case should be tried in a court which is close to the locus of the accident in question, it seems contrary to common sense for a case, where the only issue is the quantification of damage, an issue which would normally be dealt with, if it could not be agreed, at Stage 3, to be dealt with at a court convenient for the legal representatives. One has to recognise that in practice nowadays cases are being dealt with, where one has an issue limited to damages, in a court far removed from the actual location of the accident, let alone that of the defendant.
5. It is plain that the solicitors representing the parties in a situation such as that of Mr Cook should cooperate and, if it is preferred that the case should be dealt with somewhere in England, even if the accident has happened in Scotland (or vice versa), they should be able to sign a memorandum confirming that they agree to litigate the case in a particular County Court and that that should be sent to Northampton and the matter should proceed in the County Court chosen by the parties. Obviously, the court chosen by the parties should not be obliged to accept their decision, for instance in a case where the court comes to the conclusion that it will be necessary for a child claimant living say in Inverness to attend before the court where there is a requirement for approval of the award of damages. Similarly, a court may come to the conclusion that because of the nature of the dispute over the quantification of damage, it is desirable that the matter should be treated as a trial to be dealt with in the court which is convenient for the claimant personally. Nevertheless, the point remains that it is entirely undesirable for the court on the technical ground of forum non conveniens to force arrangements upon parties which will inevitably involve an unjustifiable increase in costs.