I could not quite think of a catchier title conveying both the plus (claim will continue to be heard in England) and the minus (the discussion having already caused considerable delay), without resorting too obviously to football metaphors.
The claim is brought in England by a number of Liverpool fans physically and psychologically damaged by the poor security at the May 2022 Champions League Final at Paris’ Stade de France. Claimants allege that UEFA had organisational responsibilities for the match and that they owed, and were in breach of, contractual and/or tortious duties concerning the safety of the
claimants.
The case illustrates a problem highlighted by Oliver Holland (partner with Leigh Day, the law firm representing claimants however not, as far as I am aware, involved in the claim), last week at a hearing at the UK Parliament’s human rights committee. (Mr Holland did not give current claim as an example and seeing as the hearing focused on forced labour in the supply chain, he likely did not have the claim in mind at his testimony).
Defendants in personal injury claims (whether or not linked to business and human rights) have quite the series of avenues available to them to try and derail the claims in the English courts. These include (Mr Holland discusses some of these)
objections to jurisdiction, including the infamous doctrine of forum non conveniens;
the prospect of (handy for its freezing effect) very considerable adverse costs orders whether or not coupled with security for costs; and (with impact on the costs issue)
a tendency to entertain issues of both jurisdiction and applicable law at considerable length.
Other jurisdictions of course suffer from similar challenges and I for one am not going to complain about a good conflict of laws yarn. Moreover, Lord Briggs denouncing mini-trials at the jurisdictional stage in Vedanta (Turner J in current case refers to this [15]), and the Court of Appeal’s instructions on forum non in Dyson, ought to bring more discipline to at least some of this maneuvering.
Sean Abram and others v UEFA and UEFA Events SA [2025] EWHC 483 (KB) engages with another means to try and bounce the case away from England and Wales: namely the doctrine of foreign act of state. For an excellent primer and discussion of the future of the principle see Mary Newbury here.
[5] The principal basis for UEFA’s jurisdiction challenge is that the claims would require the English Court to adjudicate on the lawfulness or validity of acts of a foreign state (France) performed within its own territory, which, UEFA argue, would be impermissible under said “Foreign Act of State Doctrine”.
I have posted quite a few times on the doctrine: see among others
Crane Bank Ltd & Ors v DFCU Bank Ltd & Ors [2023] EWCA Civ 886 which [13] defined the doctrine as courts “will not adjudicate or sit in judgment on the lawfulness or validity under its own law of an executive act of a foreign state, performed within the territory of that state” and which entertained a number of exceptions to the doctrine, as well as in my opinion leaving a potential incompatibility of (some of the implications of) the doctrine with Article 6 ECHR underdiscussed;
SKAT [Skatteforvaltningen v Solo Capital Partners Llp [2022] EWCA Civ 234] in which both the Court of Appeal and later the Supreme Court focused on the substance rather than the context of the claim (in my post I flag the echos of the Brussels /Lugano ‘civil and commercial’ discussions);
Reliance v India [2018] EWHC 822 (Comm) where Popplewell J (as he then was) held on whether the doctrine applies to arbitration tribunals;
Servis-Terminal LLC v Drelle [2025] EWCA Civ 62 which flags the need to seek formal recognition of a foreign judgment before its enforcement with Newey LJ suggesting the similar roots of this requirement as the foreign act of state doctrine.
There is certainly merit in holding on jurisdictional issues separately, before extensive engagement with the merits, at least where these objections are not obviously spurious and cannot be summarily addressed. Even in those States where civil procedure rules (CPR) give defendants a procedural right to hear the jurisdictional objections first (the E&W means is Part 11 of the CPR), and despite Turner J’s appreciation that the matter must be dealt with concisely (and note [17] his rejection of defendants’ request to delay even further and squeeze this jurisdictional objection even more), I think continental rules would not have allowed the discussion in current case to take on the extensive nature that it has, with all the costs and time delay this has already caused. And there is potential for an appeal I imagine.
The foreign act of state element of the discussion at issue, if of any relevance at all, clearly in my view is entirely incidental or ‘contextual’ and not substantial, per UKSC SCAT above and therefore simply cannot lead to rejection at the jurisdictional stage. The summary [65] in my view is poignant:
claimants make no direct allegations of unlawfulness in their Particulars of Claim in respect of the conduct of the French police or any other state entity. The defendants contend, however, that the issue of the lawfulness of such conduct is nevertheless bound to arise as an important issue
in the proceedings if the case were to be permitted to proceed further.
There is no suggestion that the way in which the claim has been formulated is designed as it were to circumvent the Foreign Act of State doctrine and that the real object of the proceedings as it were is to hold on the validity of actions by a French state entity. The pleaded case as is clear from Abram v UEFA [2024] EWHC 1518 and as summarised here [64] focuses genuinely on UEFA and consorts’ (in)actions.
Defendants contend, however, that the issue of the lawfulness of such conduct is nevertheless bound to arise as an important issue in the proceedings if the case were to be permitted to proceed further, ([126] ff they point to issues of French law to support this argument) and (ia [77]) argue that there cannot be a ‘threshold requirement’ below which the assessment of a foreign act of state becomes de minimis and does not engage the doctrine.
The judge, after having made a thorough and clear overview of both the principle (including [82] ff the absence of established authority on what amounts to an act of state) and its exceptions (much more entertained in case-law) as applied by the authorities,
[91] notes that the principle must not extend beyond the natural bounds required to fulfil the aims which it is intended to achieve (international comity, GAVC);
[106] accepts that “some aspects of the conduct of the French government and the other listed public bodies through its higher officials may (and I stress may) amount to acts of state”; however that “the task of determining which, if any, of these acts do engage the Doctrine cannot be confidently carried out on the present incomplete state of the pleadings and evidence”.
[108] ff Two relevant exceptions to the rule are further discussed obiter. The second exception is discussed [122] ff: where challenges to foreign acts
of state are merely ancillary to the claim or by way of collateral aspersion. I know this exception has been so determined by the authorities yet in my opinion would be better formulated not as an exception but as a substantive limitation to the rule.
As a side-note, there appears to be some confusion on the law that will apply to the merits of the case: see [18] ff
18. Until very shortly before the hearing of the application before me,
the claimants had been proceeding under the assumption that
French law applied to the claims of all the claimants. Experts in
French law were duly instructed to report on behalf of the
claimants and defendants respectively.
19. However, it transpires that the position may have been less clear
cut because only some of the claimants had purchased tickets
from the UEFA online ticket portal. Others had bought them
directly from Liverpool FC. Owing to the lateness of the
realisation of the true position, the claimants’ skeleton arguments
deployed for the purposes of the hearing before me had been
drafted on the premise that all of the claims were governed by
French law.
20. The position of the claimants, as now articulated in a letter dated
2 October 2024, is that their claims in tort are subject to French
law regardless of their provenance and so too is any contractual
claim in respect of those tickets purchased from the UEFA online
ticket portal. However, contractual claims brought by claimants
who received their tickets from Liverpool FC involve the
imposition of an English contractual duty to take reasonable skill
and care to be considered in regard to French health and safety
laws and regulations as applicable to the stadium. No purpose
would here be served by articulating their reasons for reaching
this view.
No doubt the cross-over between contractual claims (subject to assimilated Rome I) and non-contractual claims (Rome II, ditto assimilated) and, I imagine, the application of the consumer section of Rome I, will be made clearer in the continuation of the claims.
Geert.
