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A failed discussion board non conveniens problem in Lunn v Antarctic Logistics Centre Worldwide (Pty) Ltd [2024] EWHC 1662 (KB) led to an fascinating dialogue on relevant legislation underneath the Rome II Regulation.
The declare considerations accidents sustained by claimant while he was working as a self-employed plane engineer for a Malta-based firm, Jet Magic Restricted. On the time of the accident he was within the strategy of finishing up checks on a Boeing 757 operated by Jet Magic, which was stationary on the blue ice airstrip of the Novolazarevskaya Air Base, often known as the Novo Air Base, Schirmacher Oasis, Queen Maud Land, Antarctica. Claimant is a British citizen and was resident within the UK on the materials time.
The Defendant, Antarctic Logistics Centre Worldwide (Pty) Restricted, is an organization included underneath the legislation of South Africa. On the materials time it was the occupier and operator of the Novo Airstrip pursuant to an settlement with the Russian Federation. The Defendant chartered the plane to move scientists and staff to and from analysis stations in Antarctica.
Defendant concedes that the Claimant’s proof of constant signs from his accidents while in England is enough to determine an debatable case that the tort gateway for jurisdiction per Brownlie, is met.
Points between the events are first the deserves check: has the Claimant has established that his pleaded case has an inexpensive prospect of success / that there’s a critical challenge to be tried on the deserves (CPR 6.37(1)(b))? Secondly, discussion board conveniens and discretion: has the Claimant established that England and Wales is the correct place to attempt the declare and, if that’s the case, in all of the circumstances, ought the courtroom to train its jurisdiction to allow service out of the jurisdiction (CPR 6.37(3))?
The dispute between the events as to the relevant legislation is related each to the dedication of whether or not the Claimant’s case has actual prospects of success and to the dedication of the discussion board challenge.
The particulars of declare contend that English legislation applies by advantage of A4(3) of Rome II, the “manifestly nearer connection” correction to the overall rule. Within the pleadings nonetheless focus turned completely different: particularly that English legislation needs to be utilized at this stage of the proceedings pursuant to the “default rule” or, alternatively, on the premise of the “presumption of similarity”, particularly that English legislation is considerably just like any related overseas relevant legislation in relation to the core tortious rules arising on this case. Claimant’s counsel submits that English legislation needs to be utilized until and till the Defendant pleads a Defence in the end which alleges the appliance of overseas legislation and establishes its case in that regard.
Defendant contends that Russian legislation is the relevant legislation pursuant to A4(1) Rome II on the premise that the Novo Airstrip is alleged to be positioned in an space which is topic to Russian jurisdiction and legislation. There’s a disagreement between the events as as to whether the Novo Airstrip is in an space of Antarctica claimed by Norway or by Russia or each and, accordingly, as to what the “legislation of the nation” needs to be deemed to be pursuant to A4(1) Rome II in respect of injury occurring on the Novo Airstrip. [37] The problem of Antarctica as a ‘nation’, and the problem of making use of Rome I and II to vessels can also be flagged in Dicey.
Defendant additionally advances two additional contentions in relation to the relevant legislation:
a. First, South African legislation is alleged to be the relevant legislation pursuant to A4(2) Rome II on the premise that, pursuant to A23(2) of Rome II, the principal place of the Claimant’s enterprise needs to be deemed to be South Africa. It’s mentioned that as a self-employed engineer engaged on the plane, Claimant’s principal office was wherever the plane was positioned every so often. It’s contended that the plane was based mostly in Cape City, South Africa on the materials time. It’s submitted that that is related to the deserves check because the Claimant has adduced no proof of South African legislation, in addition to to problems with discussion board.
b. Second, it’s mentioned that it’s clear that English legislation doesn’t apply to this case and that South African or Russian (or, probably Norwegian) legislation applies and that “as there isn’t any pleaded case of Russian, South African or Norwegian legislation, the case doesn’t disclose any debatable case” and so the Claimant can’t succeed on the deserves check.
As issues turned out, the A4(1) dialogue was not pursued by events at this stage. Per Tulip Buying and selling Ltd (a Seychelles firm) v Bitcoin affiliation for BSV and others [2023] EWCA Civ 83 relevant legislation discussions a the jurisdictional stage have to be carried out summarily. [38] Each events have been trying to liaise with the Overseas Workplace and are nonetheless trying to collate proof as to the potential software of A4(1) to instances regarding injury which happens in Antarctica. [39] The potential of both Russian or Norwegian legislation making use of is in any occasion irrelevant to the problem of discussion board (versus the deserves check) as a result of no social gathering is asserting that the declare needs to be heard in both Russia or Norway.
Within the circumstances, the first dispute between the events on relevant legislation subsequently is whether or not English legislation needs to be deemed to use at this stage of the proceedings pursuant to the default rule or the presumption of similarity (claimant’s take) or whether or not South African legislation is the relevant legislation pursuant to A4(2) Rome II (defendant).
Webb DJ [40] ff rejects the submission that A4(2) implies software of South African legislation to the case. [48] he holds there’s something synthetic to put an excessive amount of “weight for jurisdiction functions on the placement of a office which is itinerant or peripatetic in nature.” (Examine nb considerably CJEU Ryanair). “If and insofar as [claimant] will be mentioned to have had a principal office on the materials time, I take into account that the load of the proof at the moment earlier than me factors, albeit considerably weakly given the artificiality of making use of the check to an itinerant enterprise, to his principal office being England.”
The decide then applies [57] the default rule:
Within the current case, for the explanations set out at [38] to [39] above, it has not been established that both Russian or Norwegian legislation is relevant underneath Article 4(1); nor can I be happy, on the current proof, that there’s a well-founded case (to undertake the phrases utilized by Lord Leggatt in Brownlie II at [116]) that Russian legislation applies, nor that Norwegian legislation applies, pursuant to Article 4(1). For the explanations set out at [47] above it has not been established (and nor do I consider there to be a well-founded case for arguing) that South African legislation is relevant underneath Article 4(2) of Rome II. It has additionally not been established that any overseas legislation is relevant underneath Article 4(3). In such circumstances it’s acceptable, in my judgment, for the courtroom to use English legislation on the default foundation at this jurisdictional stage.
(and observe [58]: “If the matter proceeds on this jurisdiction, then the Defendant may have the choice of pleading, and trying to determine, that overseas legislation applies, whether or not Norwegian, Russian or South African. It’s, after all, doable that neither social gathering elects to determine that any overseas legislation is relevant in such circumstances or that, if relevant, there are any materials variations between that alleged relevant legislation and English legislation for the needs of this declare.”)
The obiter fallback [59] is reliance on the presumption of similarity.
The rest of the dialogue then runs by way of the varied discussion board non and deserves points, and concludes [116]
Claimant has, in my judgment, happy the burdens upon him to indicate (a) that the declare has an inexpensive prospect of success, (b) that there’s a good debatable case that the declare falls throughout the related jurisdictional gateway (a degree rightly conceded by the Defendant), and (c) that England and Wales is the discussion board wherein the case will be suitably tried for the pursuits of all of the events and for the ends of justice and is clearly and distinctly the correct place to deliver the declare. In all of the circumstances, I’m happy that this can be a case wherein it’s acceptable for the courtroom to train its discretion to allow service of those proceedings out of the jurisdiction on the Defendant.
Of observe, and an A4 Rome II dialogue to be continued.
Geert.
EU Non-public Worldwide Legislation, 4th ed. 2024, 4.37 ff.
https://x.com/GAVClaw/standing/1808153657340244375
