Lynne Macfarlane: The murky waters of forum shopping

The differing laws between Scotland and England can lead to variations in damages cases

ALL of us are familiar with shopping around for the best deal. The internet is crowded with sites promising to identify the cheapest price for the majority of everyday purchases, from car insurance to holidays. Against that background, it’s hardly surprising savvy consumers and their solicitors might seek to extend the concept to legal jurisdiction in personal injury claims, to maximise the potential for recovery of damages.

The issue has been brought into focus recently, largely because of the difference in awards of damages and costs in England and Scotland, which has become more marked in recent years. Indeed, it could be argued that a solicitor acting for a claimant in such circumstances is negligent if she fails to at least attempt to raise proceedings in the jurisdiction where the level of award, or costs, will be higher.

Two recent cases are illustrative. In Louise Docherty and Others v Secretary of State for Business Innovation and Skills and ICI, heard by a Scottish judge in the Court of Session in November 2015, 24 claimants attempted to recover damages following the death of their relative, James Docherty. They alleged he had been exposed to asbestos fibres in the course of his employment as a fitter and as a consequence developed asbestosis. This exposure had occurred both when the deceased was employed by the Secretary of State in Scotland from 1941-1947, and during the course of his employment with ICI, in Teesside, from 1954-1979. Despite the greater extent of exposure in England, and the claimants all residing there, the action was raised in Scotland, primarily because of the disparity in bereavement awards. In England, the Fatal Accidents Act 1976 provides that only a limited class of relatives can recover damages. The award itself is small, about £14,000. In Scotland, such an award is governed by the Damages (Scotland) Act 2011, which permits unlimited sums to be recovered, not only by spouses, civil partners, parents or children of the deceased, but also grandparents, aunts and uncles, nieces and nephews and step-children. Scotland also affords the possibility of the case being heard by a civil jury, who traditionally award far higher sums than judges; England does not.

The action against ICI was dismissed. The claimants were resident in England but the remedy sought under the 2011 Act had no applicability there. The allegedly-negligent exposure occurred in England.

The second case was the conjoined appeals of Robert Cook v Virgin Media and James McNeil v Tesco PLC, heard by the English Court of Appeal in December 2015. Both personal injury claims were raised in England despite both claimants residing in Scotland and sustaining injury there. Nevertheless both defendants had registered offices in England and it was this factor, it was argued, that permitted the actions to proceed south of the Border.

Without being explicitly stated in the Appeal, it was apparent that solicitors wished to avail themselves of the generous English costs regime.

The cases were originally raised at Northampton County Court, but transferred to Carlisle, for no other reason than its proximity to Scotland. The first judge who considered both cases took the decision to strike them out, indicating a duty to actively manage cases so they were dealt with for the convenience of all. The decision appears to have been driven by a frustration that Carlisle is fast becoming the “county court” for Scotland, with solicitors presumably hoping that in raising the action in the English court closest to the Scottish border, they are able to meet the convenience test.

The Court of Appeal disagreed and dismissed both appeals, finding that the doctrine of forum non conveniens – forum most convenient – applied. The Brussels Regulation relied upon by the claimants was irrelevant. The Civil Jurisdiction and Judgements Act 1982 applied and provided that the Court had the inherent power to strike out proceedings on the ground of forum non conveniens where that was not inconsistent with the Lugano or 1968 Conventions. Those of us practising in personal injury law in Scotland have been warning for some time now of the likelihood of claimants forum shopping. It would seem, at least for the present, that the risk has abated. It remains to be seen whether it has been extinguished altogether.

• Lynne Macfarlane is a Partner with Clyde & Co; www.clydeco.com