A Funny Thing Happened On The Way To The Forum

INTRODUCTION

The Jersey Court of Appeal (Leeds United Football Club Limited v Weston and Levi [2012] JCA 083) has confirmed the Royal Court's ruling ([2011] JRC 185) that there is a clear distinction between challenging the jurisdiction of the Jersey court and seeking a stay in favour of a more appropriate forum. Service of an answer or other participation by the defendant in the proceedings is not a bar to a stay. The rule requiring a challenge to jurisdiction to be made within 28 days does not apply to forum challenges. While in most cases the forum challenge will naturally be made at the outset, there will be instances when a stay might justifiably be sought later in the proceedings; for example, a later change of circumstances. Leeds v Weston and Levi confirms that there can still be a forum challenge even when some steps have already been taken in the proceedings by the defendant seeking a stay. This is different from the position in relation to challenging jurisdiction. The distinction between challenging jurisdiction and seeking an alternative forum has not always been fully appreciated or understood, either in Jersey or in England and Wales. Leeds v Weston and Levi brings a clarity which is to be welcomed. BASIC PRINCIPLE OF FORUM NON CONVENIENS

It is well established that the Royal Court has jurisdiction to order a stay of proceedings when satisfied that "there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice." This long-held principle of English law was most recently approved in the Jersey Court of Appeal in Durant v Brazil [2010] JCA 214. Where there is a clearly more appropriate forum the court will order a stay unless in the circumstances justice requires that a stay should nevertheless not be granted (Spiliada Maritime Corporation v Cansulex Limited [1987] 1 A.C. 460). FORUM AND JURISDICTION

The Court of Appeal at paragraphs 13 and 14 of Leeds v Weston and Levi identified the key issue as "the difference between a plea of no jurisdiction and a challenge to forum. The first is a matter of law and falls to be determined by strict application of the relevant legal rules. For example legal rules are applied to determine whether or not a party, who would otherwise not be subject to the jurisdiction of the Jersey courts, is to be held to have submitted to it. By contrast, a forum challenge falls to be exercised in the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT