High Court Rules on Cross-Jurisdictional Service and Forum Conveniens in Morgan v Sydney Charles Financial Services Ltd

Citation: [2023] EWHC 3236 (Comm)
Judgment on

Introduction

In the case Mandy Debra Morgan v Sydney Charles Financial Services Limited ([2023] EWHC 3236 (Comm)), key topics of cross-jurisdictional service, the applicability of foreign law, and forum conveniens are addressed. The High Court was tasked with determining whether England and Wales was the appropriate forum for a claim involving services provided by a Guernsey-based defendant to a claimant resident in England. The judgment offers a nuanced analysis of the relevant Civil Procedure Rules (CPR) and applicable case law when considering service out of the jurisdiction and deciding the suitable forum for litigation.

Key Facts

Mandy Debra Morgan, the claimant and widow of the deceased, sought permission to serve a claim form on the defendant, a Guernsey-based financial services company, alleging breaches of contractual and duty of care obligations. These breaches purportedly led to the deceased being uninsured for death by natural causes at the time of his passing. Contention arose as to the claim’s connection to England and Wales, the claimant’s domicile, and the defendant’s lack of physical presence and regulation within the jurisdiction.

Service Out of Jurisdiction

The court examined whether the claim fell within the jurisdictional gateways set out in CPR r. 6.36, which governs service out of the jurisdiction with court permission. The claimant relied on the grounds of operations of an establishment within the jurisdiction (PD 6B, paragraph 3.1(1A)) and contract claims where there are connections to the jurisdiction (paragraphs 3.1(6), (7), and (9)).

Forum Conveniens

The concept of forum conveniens, the appropriate forum for trial, was central to this case, particularly as outlined in the Spiliada Maritime Corpn v Cansulex Ltd and Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd. The court assessed if England and Wales is “the proper place in which to bring the claim” (CPR r. 6.37(3)).

Applicable Law

The case briefly touched on the possibility of claims under different legal systems; English and Guernsey law. The court noted the potential for the application of Guernsey law should the claimant seek to amend her claims to align with the applicable substantive law.

Outcomes

The court found the grounds for establishing jurisdiction acceptable on specific gateways but not on others. More notably, “mere permanency” of an employee’s residence in England did not constitute a “branch, agency, or establishment” under paragraph 3.1(1A), referencing the CJEU’s definition. However, the claim was deemed to fall within the gateway of contractual breach committed within the jurisdiction (paragraph 3.1(7)) and the gateway for claims in tort (paragraph 3.1(9)(a) and (b)).

The determining factor for forum conveniens was the claimant’s capability to fund litigation. The Pioneer Container PC case influenced the court’s emphasis on practical justice; the court acknowledged the claimant’s reasonable conduct in filing the claim in England, mainly because of funding limitations to pursue the case in Guernsey.

Conclusion

The court’s meticulous application of the legal principles related to service out of jurisdiction and forum conveniens led to the authorization of the service of the claim form on the Guernsey-based defendant. This decision was undergirded by a nuanced legal analysis that considered both the technical jurisdictional criteria and broader equitable considerations. The judgment underscores the necessity for courts to navigate the complexities of cross-jurisdictional litigation, giving due regard to access to justice and the defendant’s right to contest jurisdiction effectively.

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