Issues Of Forum Shopping On Both Sides Of The Scotland/England Border

Cook v McNeil [2015] EWCA Civ 1287

Background

The issue of forum shopping is a growing problem on both sides of the Scotland/England border. Claimants are more frequently trying to raise proceedings in the part of the United Kingdom that they think will best suit their claim, notwithstanding the normal rules about domicile and location of accident.

Indeed, in this case at an earlier hearing, District Judge Park noted of Carlisle County Court that "we seem to be the county court for Scotland. There are a lot of claims coming out of Scotland, both accidents on the road and in factories and in places like Tesco, where proceedings are issued in England."

The opposite could also become true. In Scotland damages for fatal claims are significantly higher than south of the border. One can see similar arguments arising where proceedings are raised in Scotland in respect of a fatality in England.

The decision

The circumstances in this case were straightforward. Both claimants sustained injuries in accidents in Scotland. They were both domiciled in Scotland. The registered offices of the defendants were situated in England and Wales. The claims were issued in the Northampton County Court.

At earlier hearings, the claimants' cases had been struck out by virtue of the principle of forum non conveniens (literally translated as "forum not agreeing"). They appealed.

The Court of Appeal here had to decide whether it was correct that a forum non conveniens argument could apply as between different parts of the United Kingdom.

It had little hesitation in finding that it could. The Brussels Regulation could only apply as between member...